Shadden v. State

• Decision Date: 03 October 1972
• Citation: 488 S.W.2d 54
• Parties: Paul Steve SHADDEN, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.
• Court: Tennessee Court of Criminal Appeals

Page 54

488 S.W.2d 54

Paul Steve SHADDEN, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.

Court of Criminal Appeals of Tennessee.

Oct. 3, 1972.

Certiorari Denied by Supreme Court Nov. 20, 1972.

Joseph J. Levitt, Jr., & Rufus W. Beamer, Jr., Knoxville, for plaintiff in error.

David M. Pack, Atty. Gen., John B. Hagler, Jr., Asst. Atty. Gen., Nashville, John Gill & Lance Evans, Asst. Dist. Attys. Gen., Knoxville, for defendant in error.

OLIVER, Judge.

OPINION

Convicted of unlawful possession of marijuana and sentenced to imprisonment in the Knox County Workhouse for 11 months and 29 days, defendant Paul Shadden has duly perfected an appeal in the nature of a writ of error to this Court.

Although the defendant does not question the sufficiency of the evidence to warrant and support the verdict, we consider it appropriate to set out a brief summary of the material facts appearing in the trial record. On August 19, 1971 about 8:15 p.m., Layron Doyal, a member of the Knoxville Police Department working as an undercover agent, was in a parking lot on Cumberland Avenue in Knoxville in an area known as 'the strip.' He heard the defendant ask an unidentified person, both of whom were standing only three or four feet away, if he wanted some 'good grass' and saw the defendant exchange a plastic bag containing 'a green vegetation substance' for currency. The agent had seen the defendant engage in similar transactions on two previous occasions. The agent left the parking lot to get something to drink at the nearby Vol Market, and when he returned to the lot the defendant was still there and asked him if he wanted to buy some marijuana. They then went to the defendant's apartment, where he sold the agent a bag of marijuana for $10.

The defendant testified that he saw Doyal, whom he had known for about a month, on Cumberland Avenue and stopped to talk; that Doyal asked him if he had any marijuana, and that he replied negatively; that Doyal persisted in his request, and finally he told Doyal that he saw someone who might have some; that he then went into the Tennessee Restaurant where he saw a person he knew as 'Junior,' who agreed to sell some marijuana; that Junior gave him the marijuana which he in turn gave to Doyal for $10; and that he then gave the $10 to 'Junior.'

By his first Assignment of Error the defendant contends that the indictment is void for the reason that persons between the ages of 18 and 21 were systematically excluded from the Grand Jury which returned the indictment. He raised the same question in the trial court by a motion to quash the indictment, and again in his motion for a new trial complained that the trial court erred in overruling his motion to quash.

The law is firmly established in this State that a motion to quash an indictment will not lie unless it is invalid upon its face. State v. Smith, 1 Tenn.Crim.App. 163, 432 S.W.2d 501; Yearwood v. State, 2 Tenn.Crim.App. 552, 455 S.W.2d 612. The indictment in this case is altogether regular and no invalidating infirmity appears upon its face. In the Smith and Yearwood cases, supra, among other cases decided by our Supreme Court, we quoted as follows from Smith v. State, 207 Tenn. 219, 338 S.W.2d 610:

'This assignment must be overruled for at least one reason and that is a motion to quash will not lie, unless the indictment is defective on its face. State v. Davis, 204 Tenn. 553, 322 S.W.2d 232.'

Where an indictment is defective or invalid for any reason not appearing on its face, the defect must be presented by a plea in abatement. Wireman v. State, 146 Tenn. 676, 244 S.W. 488. Specifically, the formation and constitution of the Grand Jury cannot be questioned by a motion to quash the indictment, and can only be assailed by a plea in abatement. Ransom v. State, 116 Tenn. 355, 96 S.W. 953; Chairs v. State, 124 Tenn. 630, 139 S.W. 711; Price v. State, 199 Tenn. 345, 287 S.W.2d 14.

Notwithstanding those fundamental principles, the trial court, albeit erroneously, apparently treated the motion to quash the indictment as a plea in abatement and permitted presentation of proof. For this reason only we address the issue which the defendant attempted to raise in his motion to quash, but in doing so we wish to make it perfectly clear that this Court neither condones nor approves such improper use of this motion.

By Chapter 159 of the Private Acts of 1965 the Legislature provided Knox County with a jury system. Section 4 of this Act provides that the Board of Jury Commissioners shall select 'from the tax books, permanent registration lists, and poll books of the County, the names of . . . up-right and intelligent men and women of fair character and sound judgment, resident citizens of the County, Who are aligible for jury service according to the qualifications of jurors as now prescribed by law; . . . said names when so compiled by said Commissioners shall be listed alphabetically, numbered consecutively, and shall constitute the jury list for the jury box of said County and from this the venire for each term shall be pulled by lot . . . Said box shall be securely locked and sealed by the Secretary and Clerk and so kept until ordered by the Judges to break said seal and unlock said box for drawing of the venires.' (Emphasis supplied).

Section 5 of the same Act provides that 'at such time as the Judges shall determine, and in ample time before each Regular or Special Term of the Circuit and Criminal Courts, Upon order of the Judges and in the presence of two or more of the Judges, the Secretary and Clerk shall unlock the Jury Box, break the seal thereof and after having well shaken same, cause to be drawn therefrom, in the presence of the Board, by a child under the age of ten years, or a person over said age but blindfolded, such number of names as may be ordered to be taken therefrom by the Judges of said Courts from which to impanel petit and trial juries for the respective terms of said Courts.' (Emphasis supplied).

The basic qualifications prerequisite to serving as a juror in the courts of this State are prescribed by TCA § 22--101:

'Every person of the age of twenty-one (21) years, being a citizen of the United States, and a resident of the state of Tennessee, and of the county in which he or she may be summoned for jury service for a period of twelve (12) months next preceding the date of such summons, is legally qualified to act as a grand or petit juror, if not otherwise incompetent under the express provisions of the Code. A woman shall have the option of serving or not when summoned to jury duty.'

The 1971 Legislature of this State enacted the 'Legal Responsibility Act of 1971' which provides: 'Notwithstanding any laws to the contrary, any person who is eighteen (18) years of age or older shall have the same rights, duties and responsibilities as a person who is twenty-one (21) years of age or older.' This Act, codified as TCA § 1--313, became effective on May 11, 1971 and extended the elective franchise to persons 18, 19 and 20 years old.

At the hearing on the motion to quash the indictment, the proof showed that approximately a year or a year and a half before the defendant's trial in November 1971, a jury list of 15,000 names, obtained from the voter registration records of Knox County, was compiled by the Jury Commission pursuant to Chapter 159 of the Private Acts of 1965.

The newly-enfranchised voters began registering in Knox County during the first week of June 1971. However, pursuant to instructions by State election officials, the names of those new registrants were withheld from the voter registration records and were kept separate, because of pending litigation, until receipt of a court order the second week of July. Sometime during June, the Jury Commission drew 450 names from the Jury Box to serve in the July term of court, and the Grand Jury for that term of the Knox County Criminal Court was selected and empaneled from that group, and on September 13, 1971 that Grand Jury indicted the defendant who was then 19 years of age. Apparently about this time, perhaps somewhat earlier, the Jury Commission began the process of refilling the Jury Box with another 15,000 names, as is usually done every year and a half. On September 16th the Knox County Criminal Judge ordered the Commission to include the names of 240 of the newly-registered 18, 19 and 20-year-olds, and this was done. That action is not questioned.

With this review of the Knox County jury system and its operation during the pertinent period, we turn now to consider the defendant's earnest contention that the indictment was void because persons in the 18--19--20 age group were systematically excluded from the Grand Jury. His position is untenable.

In the first place, the jury list from which the defendant's Grand Jury was empaneled was regularly selected and compiled and the names were duly placed in the Jury Box long before people 18--20 years of age were enfranchsed on May 11, 1971. Persons under the age of 21 were not legally qualified to serve as jurors until May 11, 1971. There is no insistence, nor could there be any on this record, that the procedure and method employed by the Jury Commission in compiling that jury list and filling the Jury Box were in anywise unlawful. Thus, it affirmatively appears that there was no systematic exclusion of otherwise qualified voters during the selection and compilation of the jury list and Jury Box from which the defendant's Grand Jury came.

'It has long been accepted that the Constitution does not forbid the States to prescribe relevant qualifications for their jurors. The States ramain free to confine the selection to citizens, to persons meeting specified qualifications of age and educational attainment, and to those possessing good intelligence, sound judgment, and fair character. 'Our duty to protect the federal constitutional rights of all does not mean we must or should impose on states our...