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State v. Bondurant3/20/1998
federal grand jury forepersons).
We decline to accept the defendant's argument that the prosecution must present expert testimony in each individual case to show that the role of grand jury foreperson is a ministerial position. Instead, we follow the holding in Jefferson. This issue has no merit. Consequently, by failing to show prejudice, the appellant'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.
II. PRE-TRIAL PUBLICITY
Next, the defendant contends that prospective jurors were exposed to extensive pre-trial publicity concerning this case and the Dugger murder. He argues: (1) venue was transferred without objection from Giles to Maury County even though Maury County had been subjected to greater media exposure; (2) the trial court and counsel failed to adequately question jurors concerning their exposure to pre-trial publicity; and (3) the jurors were improperly allowed to separate twice daily during the trial. We find these issues to be meritless.
In order to show that the media exposure in Maury County concerning this case and the Dugger case was substantial, the defendant, upon his motion for new trial, presented the testimony of Dwight Scott, a paralegal and investigator for the Capital Case Resource Center (CCRC) in Nashville. Scott reviewed newspaper articles, radio reports, and television reports in Davidson, Giles, Lawrence, and Maury Counties about this case and the Dugger case. Scott researched the circulation or anticipated audience size in the various counties. His affidavit and copies of newspaper articles and other printed media reports were introduced into evidence in support of the motion for new trial.
Trial counsel testified at the hearing on the motion for new trial that he knew about the publicity he had seen on television and in the local paper, "The Daily Herald," but he did not get copies of all the different newspaper articles to present to the trial court. Nor did trial counsel attempt to conduct a random survey to see if people had heard about the case or ask the court to distribute a questionnaire to prospective jurors in advance.
In an effort to show that jurors were infected by pre-trial publicity concerning the Dugger trial, the defendant presented the affidavits and testimony of three jurors. A fourth juror was not allowed to testify, but his affidavit is included in the record. The first juror testified that she heard testimony during this trial that Gwen Dugger was raped and murdered by the defendant or his brother when she was 13 years old. She also heard during the trial that Dugger was dead when the defendant had sex with her; however, the juror did not remember this being discussed during deliberations. In her affidavit, she stated that "omeone who knew [the victim] brought out about the defendant having sex with the Dugger girl after death."
Another juror testified that although he did not remember making the statement to a CCRC investigator that he had heard testimony during this trial about the defendant having sex with Dugger's dead body and that he had considered it in voting, he was certain the signed statement was his. A final juror testified that during this trial, she heard testimony that Dugger was killed and buried in a dumpster or beside a dumpster in Pulaski. This juror also heard testimony that the defendant had sex with Dugger after she was dead, but she did not remember the jurors discussing it. She had heard or read about the Dugger case before trial.
Pursuant to Tennessee Rule of Criminal Procedure 21(a),
In all criminal prosecution
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