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State v. Bondurant3/20/1998
ver, the commissioners testified that they tried to ensure that a fair cross-section of jurors was selected. The lists were given to the court clerk's office, and the names were typed on slips and placed in the jury box. Nothing in the record indicates this method of selecting jurors involves a systematic exclusion of women from jury venires in Maury County.
Moreover, four women sat on the jury that deliberated in this case. While a fifth woman was originally seated on the jury, she was replaced during trial by a male alternate juror. Our supreme court has held that the presence of three women on the petit jury constitutes a "fair representation of women on the jury and that is all that is required by the Constitution of the United States." State v. Strouth, 620 S.W.2d 467, 470 (Tenn. 1981). Accordingly, this issue is without merit. Moreover, by failing to show prejudice, the defendant's claim that counsel was ineffective for failing to raise this issue before trial is also without merit. See Strickland, 466 U.S. at 693, 104 S. Ct. at 2067.
C. Discrimination in the Selection of Grand Jury Forepersons in Giles County
The defendant argues that although African-Americans represent 12% of the Giles County population over the age of 18, no African-American served in the position of foreperson of a Giles County grand jury between 1919 and 1990. The defendant contends that, based on statistical data, there is an absolute disparity of 12%, a comparative disparity of 100%, and a discrepancy of 2.3 standard deviations. Because selection of the grand jury foreperson is by judicial appointment, the defendant contends that the procedure is susceptible to abuse or is not racially neutral. To the extent that trial counsel failed to bring meritorious errors to the trial court's attention, the defendant contends that he is entitled to relief based on ineffective assistance of counsel.
While on appeal the state contends that this issue has been waived, at the hearing on the motion for new trial the state did not present proof or argument on this issue, nor did it accept the trial court's invitation to file a written response. As such, the state is in the position of raising waiver for the first time on appeal, and although this issue was not properly raised before trial, a review of the substantive claim is necessary to determine whether it has merit. Charles Walton Wright v. State, No. 01C01-9105-CR-00149, slip op. at 34.
In State v. Jefferson, 769 S.W.2d 875, 877 (Tenn. Crim. App. 1988), this court held that the issue of whether African-Americans were systematically excluded in the selection of the foreperson is subsumed by the issue of the systematic exclusion of African-Americans in the selection of the grand jury as a whole. In Jefferson, the state presented unrefuted expert testimony at trial concerning the role of the grand jury foreperson in Tennessee. Such proof showed that the grand jury foreperson's role is substantially ministerial and clerical in nature. Id. This court stated that "n Tennessee, the foreman is the spokesperson for the grand jury and has the same voting powers as any other grand jury member. Not only does the foreman not have the power to veto an indictment, his authority, within this context, is no greater than any other member of the grand jury venire." Id. (citations omitted). The court stated that "ith due respect to the dicta of the United States Supreme Court in Hobby [v. United States, 468 U.S. 339, 104 S. Ct. 3093, 82 L.Ed.2d 260 (1984)] suggesting otherwise, the proof adduced at trial supports the State's contention." Jefferson, 769 S.W.2d at 877; cf. Hobby, 468 U.S. 339, 104 S. Ct. 3093 (addressing issue of discrimination in selection of
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