State v. Boyd

• Decision Date: 04 February 1992
• Citation: 867 S.W.2d 330
• Parties: STATE of Tennessee, Appellee, v. Vincent L. BOYD, Appellant.
• Court: Tennessee Court of Criminal Appeals

Page 330

867 S.W.2d 330

STATE of Tennessee, Appellee, v. Vincent L. BOYD, Appellant.

Court of Criminal Appeals of Tennessee at Knoxville.

Feb. 4, 1992.

Permission to Appeal Dismissed

March 8, 1993.

Richard H. Winningham, Chattanooga, for appellant.

Charles W. Burson, Atty. Gen. and Reporter, C. Mark Fowler, Asst. Atty. Gen., Nashville, Gary D. Gerbitz, Dist. Atty. Gen., Bates W. Bryan, Jr. and Rodney C. Strong, Asst. Dist. Attys. Gen., Chattanooga, for appellee.

OPINION

PEAY, Judge.

The defendant was found guilty by a jury of having committed grand larceny and burglary of a business house. For these offenses the trial judge sentenced him to serve two consecutive three year terms.

In this appeal the defendant challenges the validity of both his indictments and his convictions. He contends that:

(1) the Hamilton County Board of Jury Commissioners Act, 1931 Tenn.Priv.Acts ch. 564, is unconstitutional because Hamilton County's population no longer falls within the range set forth in the act and that the act violates Article XI, § 8 of the Tennessee Constitution as there is no rational basis for Hamilton County to have a procedure different from that of the general jury provisions found in Title 22 of the Tennessee Code Annotated; (2) the local act is unconstitutional because the jury commission is automatically excluding large classes and categories of citizens;

(3) the local act is being unconstitutionally administered because the secrecy clause has been violated by an unsworn assistant's selecting the names which make up the master jury list; and,

(4) the trial judge erred in not instructing the jury as to the missing witness rule.

While noting irregularities in the Hamilton County jury selection process, we find that the defendant has not shown sufficient grounds for relief; therefore, the judgment of the trial court is affirmed.

Because the facts of the case are not in dispute and do not bear directly upon the issues raised by the defendant, they may be summarized in brief detail. On February 27, 1989, Pickett's, a retail establishment in Chattanooga, Tennessee, was burglarized. The defendant was seen entering a nearby bar carrying a large grocery sack. Police officers entered the bar and found the defendant with the stolen articles.

The facts most pertinent to this appeal concern the Hamilton County Board of Jury Commissioners Act and the manner in which the master lists for Hamilton County's juries have been compiled. The local act in question was passed by the state legislature in 1931 and provided that any county with a population between 159,000 and 160,000 would establish a jury selection process as prescribed by the act. Hamilton was the only county affected as it alone had a population falling within that range. Under this act a board of three jury commissioners was to be elected, and these commissioners were to select the names of those comprising the master jury list from which the grand and petit juries are drawn. In 1959, the legislature passed a general board of jury commissioners act which replaced the various private acts governing jury selection state wide; however, Hamilton, Davidson, and Knox Counties were exempted from this general jury law and allowed to retain their own jury selection procedures. T.C.A. § 22-2-101.

In his first issue the defendant contends that the local act is no longer applicable because Hamilton County has exceeded the act's population ceiling. As noted above, the local act provides that it shall be applicable to counties with a population of no less than 159,000 nor more than 160,000 according to the federal census of 1930 or any subsequent federal census. When the local act was passed, Hamilton County's population was approximately 159,497 but by 1989 it was over 287,740. We do not dispute the defendant's contention that Hamilton County has exceeded the population range set forth in the local act; however, we find that the act remains applicable to Hamilton County.

Our Supreme Court squarely addressed this issue in Hall v. State, 124 Tenn. 235, 137 S.W. 500 (1910). The Court determined that "[i]t is immaterial whether the population of a county falling within a class created when the act was passed increases or decreases". Hall, 137 S.W. 500, 503. A county once within a population classification may not drop out of the class, regardless of changes in that county's population, until the legislation is specifically repealed. Hall, 137 S.W. 500, 502-03. As the legislature repealed all private acts governing the selection of juries except those applicable to counties with populations falling within a particular range which included Hamilton County, the county's growth has not rendered the act inapplicable.

In response to several of the following contentions, the State alleges that the defendant waived these matters by failing to argue certain specific grounds at the lower court level. To support these assertions the State relies upon T.R.A.P. 3(e), which provides a guide for proper appeals when a new trial is being sought. However, the defendant is not only seeking a reversal of his convictions but is also asking that his indictments be dismissed. Since the defendant is not seeking a new trial, his appeal is not covered by T.R.A.P. 3(e); therefore, the State's contention concerning waiver is without merit.

Within his first issue the defendant also argues that the local act violates Article XI § 8 of the Tennessee Constitution which provides that:

[t]he Legislature shall have no power to suspend any general law for the benefit of any particular individual, nor to pass any law for the benefit of individuals inconsistent with the general laws of the land; nor to pass any law granting to any individual or individuals, rights, privileges, immunity, or exemptions other than such as may be, by the same law extended to any member of the community, who may be able to bring himself within the provisions of such law.

Citing Knoxville Community Development Corp. v. Knox County, 665 S.W.2d 704, 705 (Tenn.1984), he adds that if an act is local in effect and contravenes the general law, the provisions of Article XI, § 8 of the state constitution must be satisfied, and any special classifications must rest upon reasonable grounds. The defendant argues that the local act contradicts the general law and does not have a reasonable basis.

The burden of showing that the classification is not reasonable is upon the party attacking the statute. Hart v. City of Johnson City, 801 S.W.2d 512, 516 (Tenn.1990); Harwell v. Leech, 672 S.W.2d 761, 763-64 (Tenn.1984). However, the defendant fails to specify what makes the population classification of the local act unreasonable. While making the blanket statement that "there is no reason for a population differential on jury selection acts", he puts forth no proof or evidence of such unreasonableness. No statistics or comparisons of similar counties are used to demonstrate a problem with the local act. In short, the defendant has failed to carry his burden of proving that the population classification in the local act is unreasonable.

We do, however, note that credible arguments exist in support of the population classification in the local act. There is no general rule by which to judge what is a reasonable classification and what is not; the question is a practical one depending on the circumstances of each case. Hart, 801 S.W.2d 512, 516; Harwell, 672 S.W.2d 761, 763. Looking at the local act itself, it does not clearly state the reasons for its population classification, but such is not necessary. See Harwell, 672 S.W.2d 761, 763. Our Supreme Court has concluded that if any possible reason can be conceived or is fairly debatable for the classification, then it should be upheld. Hart, 801 S.W.2d 512, 516; Harwell, 672 S.W.2d 761, 763.

Certainly it can be argued that counties with larger populations need a jury selection process more specifically designed to meet their needs. A larger population means a larger potential jury pool; thus, there must be a system for reducing the potential jurors down to a manageable number while still maintaining a viable cross-section of the community. In addition, a more populous county may have a larger bureaucracy and more complex records and files available to the jury selection committee. ¹

In his second issue the defendant contends that the local act is unconstitutionally administered because the jury commissioners automatically exclude large classes of people from the jury pool. Following similar exemptions to those listed in T.C.A. § 22-1-103, the Hamilton County jury summons notes that doctors, practicing attorneys, those over sixty-five years of age who are disabled, and others may claim an exemption from service. However, as a practical matter, one of the Hamilton County jury commissioners testified that the names of doctors, lawyers, clergymen, people over the age of seventy-five, and those who have not voted are not even included on the jury list.

Although the defendant contends that this action violates both his state and federal constitutional rights, the state claim may be summarily dismissed as he bases it on Article XI, § 8 of the Tennessee Constitution. This section is intended as a limitation on the power of the State Legislature as is made clear by the following language: "The Legislature shall have no power to suspend any general law ...". No mention is made concerning the power of local governments or agencies; thus, as we are dealing with the actions of a county jury commission and not the State Legislature, Article XI, § 8 does not apply.

The defendant also argues that the exclusion of these large groups violates the fair cross-section requirement as mandated by the federal constitution. While a jury roll need not be a perfect mirror of the community, it must represent a fair cross-section of the population. State v. Blunt, 708 S.W.2d 415, 417 (Tenn.Crim.App.19...