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State v. Bondurant3/20/1998
al Judge in open court. The deputy clerks then took the names that were drawn and looked up the phone numbers. If the address on a juror slip did not match the address in the phone book, the slip was set aside. Moreover, if the deputy clerk knew the person's work number, she would try to reach the person there. One deputy clerk testified that people called back in the afternoon to see if it was a joke because they had never been called to jury duty in this manner before. No master list was made of the names drawn or summoned, and nothing was done to those persons who did not respond.
Trial counsel objected to the special venire right before the jury was sworn. In support of the motion, the defense presented the testimony of the circuit court clerk. After argument on the motion, the trial Judge overruled the motion, stating that "he defense counsel agreed to this method of selecting the jury. We have a full cross section of the citizens of this county."
While the defendant does not show actual prejudice, he argues that the integrity of the system was prejudiced as in Lynn, 924 S.W.2d 892.
Under Tennessee Code Annotated section 22-2-308(a)(2)(1980), the following procedures were to be followed in the event a special venire became necessary:
In the event by reason of the disqualification of proposed jurors, or other cause, the required number of jurors cannot be obtained from the venire, the clerk of the court shall produce in open court the jury box, and the box shall be opened by the court and there shall be drawn therefrom, as directed by the court, the number of names deemed by the Judge sufficient to complete the juries. This process shall, if necessary, continue until the grand and petit juries are completed; but the Judge of the court instead of following the last mentioned procedure may, if the Judge shall deem proper, furnish a sufficient number of names of persons to be summoned to the sheriff, or the Judge may, if the Judge thinks proper, direct the sheriff to summon a sufficient number to complete the juries.
Although the statutory procedures for calling a special venire were not properly followed in this case, we find that the circumstances do not require reversal as in Lynn, without a showing of actual prejudice to the defendant, which has not been made.
Again, in determining that failure to comply with the statutory requirements was reversible error, the supreme court described the violations found in Lynn:
The clerk, not the Judge, opened the box. The box was opened in the clerk's office, not in open court and not in the presence of the Judge. The clerk, not the Judge, drew the names and resealed the box. Neither party was advised that a new panel was being drawn. These circumstances, unlike those present in prior cases, are not an insignificant departure from technical statutory requirements. Rather, they represent a complete deviation from the directives established by our legislature.
Lynn, 924 S.W.2d at 895.
The court went on to distinguish the facts in Lynn from previous cases where the deviations from the statutory procedure were relatively minor and were either inadvertent or were necessitated by circumstances beyond the control of the court. The court distinguished these violations because the "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." Lynn, 924 S.W.2d at 898. Based on these findings, the supreme court went on to hold:
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