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State v. Bondurant3/20/1998
pe.
When a group of jurors reported for duty, roll was taken, and the names of jurors who did not answer were laid aside. The rest of the tabs were placed in a shoe box and handed to the Judge. The bailiff took the jurors' information cards as they took their seats in the box. When the box was full, the bailiff returned the cards to Scott, who clipped and marked them by panel number. Then the cards were sent to the circuit court clerk's office so that the master list could be typed. If a juror brought a doctor's certificate, Scott removed his or her name from the list. Otherwise, the court decided whether someone should be excused.
After the names were drawn, people would call the clerk's office trying to avoid jury service. While some of the deputy clerks told them to bring a doctor's excuse on the day of service, others personally excused physicians, school teachers, persons over 65, and any professional people without asking for approval from the trial Judge.
The sheriff of Maury County, who was never sworn to secrecy or served with a writ of venire facias, summoned jurors by regular mail based on the list sent from the clerk's office. Any notices returned because of insufficient address, wrong address, or because the juror had moved, were returned to the clerk's office. These potential jurors were never resummoned, nor was the sheriff instructed to bring them to court for failing to appear.
The defendant claims that the enumerated statutory violations require that his conviction be reversed without a showing of actual prejudice and the case be remanded for a new trial under State v. Lynn, 924 S.W.2d 892 (Tenn. 1996). We find that Lynn does not apply to the facts of this case. In Lynn, our supreme court held that a "flagrant, unreasonable, and unnecessary" deviation from the statutory special venire selection procedure, following the trial court's finding of jury tampering with the original venire, constituted reversible error even though the defendant was unable to demonstrate actual prejudice. Id. at 894.
In denying the defendant's claim as presented upon the motion for new trial, the trial court made the following findings: The Defendant next claims that his conviction should be set aside because Maury County officials departed in certain respects from the statutory procedure for selecting the petit jury voire . At the hearing on this matter, the Defendant asserted thirty-one purported statutory violations, all falling under Title 22, Chapter 2 of the Tennessee Code governing selection of jurors. Defendant is not entitled to relief on this claim despite the departure noted above, because Tennessee Code Annotated, see 22-2-213, specifically provided that in the absence of fraud, no irregularity with respect to any of those provisions shall affect the validity of any verdict rendered by a trial jury unless pointed out by the Defendant before the jury is sworn. In this case, I find no showing of fraud and this issue was first raised in this Motion. This issue is without merit and is overruled.
As cited by the trial court, Tennessee Code Annotated section 22-2-313 provides:
In the absence of fraud, no irregularity with respect to the provisions of thispart or the procedure thereunder shall affect the validity of any selection ofany grand jury, or the validity of any verdict rendered by the trial jury unlesssuch irregularity has been specially pointed out and exceptions taken theretobefore the jury is sworn.
Here, the defendant failed to take issue with the original venire before the jury was sworn. Accordingly, this issue was waived. Tenn. R. App. P. 36(a). Regardless, application of Lynn is limited to extraord
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