Jefferson v. State
| Decision Date | 20 May 1977 |
| Citation | 559 S.W.2d 649 |
| Parties | James Thomas JEFFERSON, Appellant, v. STATE of Tennessee, Appellee. |
| Court | Tennessee Court of Criminal Appeals |
Avon N. Williams, Jr., Nashville, for appellant.
Brooks, McLemore, Jr., Atty. Gen., William C. Koch, Jr., Asst. Atty. Gen., Thomas H. Shriver, Dist. Atty. Gen., Nashville, for appellee.
OPINION
In State v. Jefferson, Tenn., 529 S.W.2d 674 (1975), a limited remand was ordered for an evidentiary hearing on the plea in abatement alleging systematic exclusion of Negroes from grand and petit juries in Davidson County and on the allegations that blacks were systematically excluded from the petit juries by the use of a computer.
After an evidentiary hearing, the trial judge (sitting by designation) filed his memorandum in which he overruled all of the appellant's contentions. We approve his findings of fact and conclusions of law and affirm the judgment of dismissal.
In disposing of Jefferson's attack on the composition and constitutionality of the grand jury, the trial judge found:
"As to the selection of the Grand Jury, the Court finds that by Chapter 53 of the Private Acts of 1947, the Judge of the Criminal Court was the official responsible for selection of the Grand Jury; that such act has heretofore been found to be constitutional and is not a question in this hearing; that in the May, 1968, term at which the indictment was returned, the Honorable Raymond H. Leathers, Judge of Division I of the Criminal Court for Davidson County, selected the Grand Jury; that Judge Leathers had appointed Grand Jurors on a rotating basis since September, 1958, when he became Judge; that on some of those he had not appointed any black persons; that he probably did not appoint more than one black person on any particular Grand Jury prior to May of 1968; that as shown by 'Defendant Exhibit No. 8' introduced in this hearing, which is a stipulation filed in a previous case, eight black persons had served on those Grand Juries; that in selecting the Grand Jury for the May, 1968, term of the Court the Judge selected thirteen (13) persons, one of which was a black person; that subsequent to this it was necessary to select substitute jurors for this panel, and that using the list of regular jurors who had been called for Trial Jury service, two (2) other black persons were selected as substitute jurors and that one of these black persons was made a regular member of the Grand Jury on May 24, 1968; that two black persons were serving on the Grand Jury which indicted the defendant on 19 July 1968; that in selecting persons to serve on Grand Juries under the Private Act of 1947, the Judge sought people in the community who were reputable people; that the selection of black people was done so as to include some black people on the Grand Jury; that no factor was used in determining the number of black persons to select for Grand Jury service; that the same method for selecting white persons and black persons was used, that is by finding reputable people to serve on Grand Juries; that the evidence in this case does not show that the Judge selecting the Grand Jury of May, 1968, systematically excluded black persons from the Grand Jury, nor did he include black persons in such a manner as to indicate 'token inclusion' so as to render the Grand Jury an improper body."
In challenging the dismissal, the appellant insists that the court erred in limiting his proof to the May 1968 grand jury that indicted him. He contends that under Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977), he should have been permitted to show racial discrimination over a long period of time.
Although the trial judge held that the issue involved only the grand jury that indicted Jefferson, he permitted the appellant to introduce stipulations and exhibits from earlier cases that showed the statistical representation of Negroes on the grand juries in previous years. Called by the appellant, the judge who impaneled the grand jury testified that he obtained the names of prospective jurors from any source he desired; that he chose jurors through recommendations and through observing persons in the courtroom and that he picked white jurors the same way he picked black ones. In all of his selections, he was only interested in getting 12 persons who voted their consciences. He had been judge of Division I since September 1, 1958.
Based on this system, the record shows that eight blacks served on the judges' grand juries from September 1958 to May 1968, and there was usually only one black on each jury panel although some jury panels contained no blacks.
The plea in abatement alleged that not more than one black served on the grand jury that indicted Jefferson. On the contrary, two permanent members of that jury were black, and a black alternate was available. The percentage of blacks to the total population eligible for jury duty was 15.4, not far from the average for the county. There was no substantial underrepresentation of his group on this grand jury. With the alternate considered, at times during that term 23 percent blacks were available for the grand jury. There is no substantial disparity here which would suggest any discriminatory purpose or that blacks had been systematically excluded from Davidson County grand juries.
Racial discrimination in the Davidson County grand jury selection process may have existed prior to 1948. See Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). However, for the period of 1952 through 1971, the grand jury selection process has survived constitutional scrutiny from at least three separate courts. Allen v. State, unpublished, Tenn.Cr.App., February 1, 1973; Allen v. Rose, unpublished, D.Tenn., M.D., February 25, 1973; Allen v. Rose, unpublished, 6th Cir., April 30, 1974. In addition, the statute authorizing judges to select the grand jury has also been upheld. Canady v. State, 3 Tenn.Cr.App. 337, 461 S.W.2d 53 (1970).
Although the trial judge did not allow Jefferson the wide ranging latitude he sought, we have examined the entire record and find that he did not...
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