Holiday v. State

• Decision Date: 22 November 1972
• Citation: 512 S.W.2d 953
• Parties: Frank HOLIDAY, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
• Court: Tennessee Court of Criminal Appeals

Page 953

512 S.W.2d 953

Frank HOLIDAY, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.

Court of Criminal Appeals of Tennessee.

Nov. 22, 1972 Certiorari Denied by Supreme Court April 2, 1973.

Earl J. Porter, Jr., Nashville, for plaintiff in error.

David M. Pack, Atty. Gen., William C. Koch, Jr., Asst. Atty. Gen., Aaron Wyckoff, Asst. Dist. Atty. Gen., Nashville, for defendant in error.

OPINION

O'BRIEN, Judge.

Appeal from dismissal of a petition for post-conviction relief without an evidentiary hearing.

Error is assigned to the trial court's action in sustaining the State's demurrer to the petition which alleges systematic exclusion of negroes from the grand jury which returned the indictment against him.

The petition in this cause was filed on April 10th, 1972. Counsel was appointed on April 13th, 1972. On April 27th, 1972, a demurrer to the petition was filed on the premise that the allegations contained in the petition constituted no grounds for legal relief. The cause came on to be heard on May 25th, 1972. The dismissal order relates the matter came on to be heard on the Petition, the Demurrer of the State, statements of counsel, and the entire record. The trial judge sustained the demurrer, basing his decision on the authorities cited in the order.

The petition makes a conclusory allegation that the grand jury which indicted petitioner was selected in violation of the Fourteenth Amendment to the United States Constitution, and in violation of Article I, Section 8 of the Constitution of Tennessee and T.C.A. Sec. 40--1501. It states further that petitioner was tried pursuant to an indictment returned by an illegally selected grand jury from a panel that systematically excluded negroes.

For its factual basis, the petition alleges certain unofficial statistical information indicating that the grand jury system over the years has not been comprised of a 'representative' sample or cross-section of the community. The petition does allege the name of petitioner's counsel at trial and subsequent appeal, but does not make any allegation of incompetency of counsel. It does not state any reason why the grounds alleged in the petition were not timely presented in any of the prior proceedings. It does not include evidence of any kind to support its allegations.

Appointed counsel here has filed a very erudite and compelling brief earnestly urging that the private act creating the system for selection of grand juries in Davidson County is violative of the constitutional rights and statutory provisions as alleged in the petition; that this system for the selection of grand jurors is conducive to the intentional exclusion of blacks from grand jury service; that the petition shows a substantial disparity between black citizens and black brand jurors and therefore establishes a prima facie case of discrimination; and the nonassertion of a timely objection by petitioner's trial counsel to 'systematic exclusion' did not constitute effective waiver of such objections and did warrant habeas corpus relief.

The trial court dismissed the petition on the premise that the petitioner had failed to follow the procedural requirements of the law in this State to raise the issue by plea in abatement prior to pleading to the indictment at his trial. Counsel's persuasive argument notwithstanding, the sole question which we may consider here is whether or not the right which petitioner now urges as grounds to void his conviction were waived at his trial, and if at this late date he is entitled to post-conviction relief.

We have reviewed this record thoroughly, including the citations of authority submitted on behalf of petitioner and the State, as well as numerous others noted in the course of independent research. We have also reviewed the record of petitioner's original trial in the Criminal Court of Davidson County, and his original appeal to this Court. In doing so, we have concluded that the trial court was eminently correct in dismissing the post-conviction petition.

Petitioner was arrested on March 10th, 1967, and indicated on March 28th, 1967. He came to trial in July, 1967. The jury found him guilty of robbery with a deadly weapon and sentenced him to twenty years in the Penitentiary. He was ably represented at trial, and on appeal, by John Kyle, Esq., of the Davidson County Public Defender's Office. At no time during the course of the trial, nor on the appeal, was the question of the composition of the grand jury raised.

Petitioner's brief relies heavily on State ex rel. Henderson v. Russell, Tenn.Cr.App., 459 S.W.2d 176 (Henderson v. Tollett, 342 F.Supp. 113, M.D.Tenn. 1972), now pending on certiorari before the U.S. Supreme Court. There are a number of federal and state decisions, before and since Henderson, supra, which sustain the trial court ruling in this case.

The question of creating a racial balance on a civil petit jury was considered by counsel as early as 1874 in this State, and the Tennessee Supreme Court recognized there that, 'The courts have no right to exclude anyone from the jurybox, otherwise qualified, on account of race or color,' . . . Mayor and City Council of Nashville v. Charles Sheperd, 62 Tenn. 373.

The issue was raised in Ransom v. State, 116 Tenn. 355, 96 S.W. 953 (1905). It was held in that case that objections to the formotion of the grand jury must be seasonably made, and, after indictment, can only be made by plea in abatement, and not by mere motion to quash. The Tennessee Supreme Court in that case, citing from the United States Supreme Court in Agnew v. United States, 165 U.S. 42, 17 S.Ct. 235, 41 L.Ed. 624, applied the theory that the objection came too late for the reason that the defendant had not challenged the competency or legality of the grand jury at the earliest possible moment. The reasoning in those cases appears to be that where a defendant had knowledge beforehand that a charge against him would be considered by a grand jury which was illegally or improperly composed, objections should be made at the earliest possible moment in order to enable the Court to correct the errors complained of and provide the defendant with the fair trial to which he was entitled. The rule was also stated in both Agnew, supra, and Ransom, supra, that a defendant must do more than charge discrimination, but must show the manner in which he was prejudiced by the act of discrimination of which he complains.

In Rivers v. State, 117 Tenn. 235, 96 S.W. 956 (1906), the same objection to the racial composition of the grand jury was made and the rule requiring the earliest possible objection to the composition of the grand jury was stated thusly:

'. . . And the reason underlying the requirement is that the defendant cannot stand by and speculate upon the probability of the grand jury finding, or not finding, an indictment against him; and if they should find such indictment, he may thereupon attack the Constitution of the grand jury.'

In Pennel v. State, 122 Tenn. 622, 125 S.W. 445 (1909), objection to the composition of the grand jury was made because of the manner in which the grand jurors were appointed by the judge of the Criminal Court of Davidson County. The method was similar to that employed under the Private Acts of 1947 by which grand jurors are now chosen in Davidson County. In the Pennel case, the Supreme Court held that the plea in abatement came too late, and also that the defendant had failed to aver want of knowledge of the competency of the grand jury before his arraignment and plea of not guilty, and that it was incumbent upon him to aver that his plea was filed at the earliest opportunity after knowledge of the existence of the indictment.

In Chairs v. State, 124 Tenn. 630, 139 S.W. 711 (1911), the judgment of the trial court was affirmed on this issue for the explicit reason that the matter should be raised by plea in abatement, properly verified. The court held that rule to be, 'That if the want of an opportunity to challenge the panel is an element in the right to maintain the plea, the existence of such want of opportunity must be negatived.' 'It must appear from its averments to have been filed at the earliest possible time.'

One of the more recent cases in this jurisdiction on the issue of the racial composition of a grand jury, in which one of the present judges of the United States Supreme Court served as counsel, was published in 1947. (Kennedy v. State, 186 Tenn. 310, 210 S.W.2d 132.) This case was properly submitted on a plea in abatement prior to the trial. The issue of discrimination was intensely pursued and the Tennessee Supreme Court found the evidence adequate to show nondiscrimination. The Supreme Court of the United States denied certiorari, 333 U.S. 846, 68 S.Ct. 659, 92 L.Ed. 1129.

In Williamson v. State, 194 Tenn. 341, 250 S.W.2d 556 (1952), the composition of both the grand and petit juries was questioned. The Supreme Court had previously reversed a conviction for the same defendant because no members of the colored race were summoned for jury service. The second conviction was affirmed because the defendant introduced no evidence on the composition of the grand jury at the second trial; as to the petit jury the court found there was no evidence of discrimination by reason of race and the defendant was not entitled to proportionate racial representation.

The question of racial discrimination was raised and considered in Kirkendoll v. State, 198 Tenn. 497, 281 S.W.2d 243 (1955); in McKinnie v. State, 214 Tenn. 195, 379 S.W.2d 214 (1964); and State v. Johnson, 220 Tenn. 49, 413 S.W.2d 694 (1967). In Bonds v. State, 220 Tenn. 555, 421 S.W.2d 87 (1967), the plea in abatement challenging the racial composition of the grand jury was overruled in the trial court and the assignment of error alleging this as a gound for reversal was sustained by the Supreme Court and the indictment dismissed as void.

In 1968 in State ex rel. Hathaway...