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State v. Bondurant3/20/1998
inary circumstances which do not exist as to the original venire in the present case. Notably, in Lynn, without notice to either party, the trial court directed the court clerk to draw new names for a venire after it found evidence the original venire was tainted by jury tampering. The court clerk opened the jury box in his office, unsealed it, and drew sufficient names to constitute a special jury panel. Counsel was not supplied a list of the names until immediately before jury selection. Lynn, 924 S.W.2d at 894.
The supreme court found that the statutory requirements for selecting a special venire were totally disregarded after the original venire was tainted by jury tampering:
he statutes are explicit. The procedures required are detailed. This judicial proceeding had already been discolored by the trial Judge's earlier findings of jury tampering. The fundamental principles of impartiality, disinterestedness, and fairness are even more essential in a case, such as this, in which a previous attempt to circumvent fairness has occurred.
Often, the public sees in our Justice system something substantially different from what actually exists. It is the appearance that often undermines or resurrects faith in the system. To promote public confidence in the fairness of the system and to preserve the system's integrity in the eyes of the litigants and the public, "Justice must satisfy the appearance of Justice." Offutt v. United States, 348 U.S. 11, 13, 75 S. Ct. 11, 13, 99 L.Ed.11 (1954).
Lynn, 924 S.W. at 898. Accordingly, absent extraordinary circumstances, as set out in Lynn, the defendant still has the burden of demonstrating prejudice from the failure to follow the technical procedures of Title 22. See State v. Coleman, 865 S.W.2d 455, 458 (Tenn. 1993). In the present case, the defendant concedes that he is unable to show prejudice. We fail to find sufficient similarity between Lynn and the case at bar to warrant the extraordinary remedy afforded the defendant in Lynn.
Accordingly, the defendant's claim of ineffective assistance must also fail. When a defendant seeks relief on the basis of ineffective assistance of counsel, he must first establish that the services rendered or the advice given was below "the range of competence demanded of attorneys in criminal cases." Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Second, he must show that the deficiencies "actually had an adverse effect on the defense." Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 2067 (1984). There must be a reasonable probability that but for counsel's error, the result of the proceeding would have been different. Id., 466 U.S. at 694, 104 S. Ct. at 2068; see Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim. App. 1985). Should the defendant fail to establish either factor, he is not entitled to relief. Here, regardless of the technical violations in calling the original jury venire, the defendant has failed to show prejudice. Therefore, his claim of ineffective assistance is also without merit.
The defendant also argues that because of the deviation from the mandated selection procedure in selecting a special jury venire for this case and because of the resulting prejudice to the integrity of the judicial process and the public's confidence in the administration of Justice, this matter should be remanded for a new trial.
When it became apparent that there would not be enough potential jurors to complete the panel in this case, the trial Judge directed the court clerk to have more jurors called. The testimony was unclear as to who opened the jury box and drew the names, but it was evident that the jury commissioners did not, nor did the tri
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