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State v. Davidson5/12/2000
rdict illegal. See State v. Boyd, 867 S.W.2d 330, 337 (Tenn. Crim. App. 1992); see also Flynn v. State, 313 S.W.2d 248 (Tenn. 1958) (Absent fraud or prejudice, departure from the manner prescribed does not render that body illegal nor its acts invalid.). This issue is without merit.
Change of Venue
In his pretrial motion for change of venue, the defendant claimed that a fair trial was impossible because of "undue excitement" against him. In support of this motion, the defendant filed three affidavits, all by relatives of the defendant, and all asserting that the small size of the community, the local media coverage, and the relative prominence of Whittenburg, because of her relation to a former politician in that area, precluded a fair trial.
Apparently, the trial court reserved ruling on the original pretrial hearing for change of venue and advised the parties during jury selection that the motion was still under advisement. Although we find neither transcript of the hearing nor other discussion of the trial court's ruling in the record, the motion was apparently denied. Therefore, the defendant's failure to properly preserve a record for our review constitutes waiver of the issue. See Tenn. R. App. Pro. 24(b); State v. Matthews, 805 S.W.2d 776 (Tenn. Crim. App. 1990). Nevertheless, the defendant's argument fails on the merits.
Absent a clear abuse of discretion by the trial court in this matter, this Court will not interfere with the ruling. See State v. Howell, 868 S.W.2d 238, 249 (Tenn. 1993); Adkins v. State, 911 S.W.2d 334, 343 (Tenn. Crim. App. 1994). "Prejudice will not be presumed on the mere showing that there was considerable pre-trial publicity," and the accused must demonstrate that the jurors were biased by pre-trial publicity. See Adkins, 911 S.W.2d at 343. The defendant fails to establish prejudice such that we can find a clear abuse of discretion by the trial court's decision regarding venire.
Individual Voir Dire
The defendant argues that the trial court erred by refusing his requests for individual sequestered voir dire. The decisions regarding voir dire rests within the sound discretion of the trial court, and individually sequested voir dire is mandated only when a significant possibility exists that a juror has been exposed to potentially prejudicial matters. See State v. Howell, 868 S.W.2d 238, 247 (Tenn. 1993).
The trial judge stated that individual voir dire would be allowed on a case-by-case basis, as needed, and noted that opportunity for prejudice would be limited because only two panels of prospective jurors would be in the courtroom at a given time. The defendant asserts that three jurors stated that they believed that a murder had occurred. The defendant asserts error both in refusing to remove these jurors for cause and in allowing the other potential jurors to hear their opinions. The trial court denied the defendant's motion to have these three jurors dismissed for cause, and we address those persons' statements as jurors in subsequent analysis.
We do not conclude that other jurors were thereby exposed to prejudicial material, especially in light of practically all the jurors' awareness that homicides were suspected in the case and that the trial judge instructed the prospective jurors that the state bore the burden of establishing that homicides had actually occurred. The defendant identifies nothing in the record as prejudicial or inflammatory, see State v. Coe, 655 S.W.2d 903, 911 (Tenn. 1983), and the issue is therefore without merit.
Peremptory Challenges
Both the state and the defendant used all their allotted eight peremptory challenges. The d
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