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State v. Bondurant3/20/1998
lusion in his Motion, his argument goes to underrepresentation. (See transcript of Motion for New Trial, pg. 157 et. seq) The Court finds that the proof in this case does not support a claim of systematic exclusion of women from petit juries of Maury County and that the Defendant, a white male lacks standing to assert an equal protection violation as to under-representation of women on the Maury County Petit juries.
The United States Supreme Court has held that a male has standing to challenge the constitutionality of the exclusion of women from jury service. Taylor v. Louisiana, 419 U.S. 522, 526, 95 S. Ct. 692, 696 (1975). In Taylor, the court further held that the systematic exclusion of women is violative of the right to a petit jury selected from a representative cross-section of the community and guaranteed by the Sixth Amendment right to a jury trial. Taylor, 419 U.S. at 531, 95 S. Ct. at 698. Petit juries actually chosen, however, are not required to mirror the community or reflect the various distinctive groups in the population. Taylor, 419 U.S. at 538, 95 S. Ct. at 702.
In Duren v. Missouri, 439 U.S. 357, 99 S. Ct. 664 (1979), the Supreme Court set forth a three-pronged test for determining whether a jury was properly selected from a fair cross-section of the community:
(1) that the group alleged to be excluded is a "distinctive" group in the community;
(2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and
(3) that this under representation is due to systematic exclusion of the group in the jury-selection process.
Duren, 439 U.S. at 364, 99 S. Ct. at 668. This test was first applied by this court in State v. Nelson, 603 S.W.2d 158, 161 (Tenn. Crim. App. 1980), and later by our supreme court in State v. Buck, 670 S.W.2d 600, 610 (Tenn. 1984).
The defendant has met the first prong of this test, in that women are a "distinctive" group in the community. State v. Thompson, 768 S.W.2d 239, 246 (Tenn. 1989), cert. denied, 497 U.S. 1031, 110 S. Ct. 3288 (1990). Moreover, if the unchallenged venire statistics are accurate, the defendant has demonstrated that the representation of women in the venire from which his jury was selected was neither fair nor reasonable under Adkins v. State, 911 S.W.2d 334, 353 (Tenn. Crim. App. 1994). According to the statistical proof presented by the defendant, women made up 53% of Maury County's population in 1990, yet the average percentage of women summoned on the venire lists from February 1989 to December 1991 was only 37%.
Regardless, the defendant has failed to show that this under-representation was due to systematic exclusion of women in the jury-selection process. In Taylor, the petitioner was able to point to a particular Louisiana constitutional and statutory requirement that systematically excluded women from the jury-selection process. Taylor, 419 U.S. at 524, 95 S. Ct. 694-95. The petitioner in Duren was able to demonstrate that a large discrepancy had occurred in every venire for a period of nearly a year. The facts supported a determination that under-representation of women was systematic or inherent in the particular jury-selection process utilized. Duren, 439 U.S. at 365-66, 99 S. Ct. at 669.
Here, the proof showed that the jury commissioners compiled lists of jurors from the voter registration books for their districts and from the telephone directory. When making the initial lists, they would automatically exclude those persons who they knew would be exempt from service, such as doctors, nurses, attorneys, and ministers. Howe
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