State v. Wiseman
| Decision Date | 20 August 1982 |
| Citation | 643 S.W.2d 354 |
| Parties | STATE of Tennessee, Appellee, v. Jack WISEMAN, Appellant. |
| Court | Tennessee Court of Criminal Appeals |
Richard W. Pectol & Associates, P.C., Johnson City, for appellant.
William M. Leech, Jr., Atty. Gen., Wayne E. Uhl, Asst. Atty. Gen., Nashville, Lewis W. May, Jr., Dist. Atty. Gen., Mountain City, William R. Mooney, Lynn Brown, Asst. Dist. Attys. Gen., Johnson City, for appellee.
The appellant/defendant, Jack Wiseman, was indicted with Elaine Minor, Connie King, Keith King, Clyde Harris, D.W. Deaderick, Jack Hughes, and Gary Green in a forty-six count indictment for embezzlement of public funds in violation of TCA § 39-4231. Mr. Wiseman, Ms. Minor and Mr. & Mrs. King were named as defendants in all counts of the indictment, and the other defendants were named in some of the various counts. The other defendants' cases were severed, and Mr. Wiseman, Ms. Minor, and Mr. & Mrs. King were tried together at a joint trial. Most of these defendants testified against the ones on trial.
On motion of the state, the trial judge dismissed five counts of the indictment. Following a four week trial, the jury found all of the defendants not guilty on all remaining counts except the last. Under that count the jury found all of the defendants guilty of embezzlement of public funds in the amount of $162,000.00 as charged and fixed the punishment for each one at not less than three nor more than ten years in the state penitentiary, and assessed a fine in the amount of $162,000.00 against each defendant. Only Mr. Wiseman appealed. He has presented six issues, with numerous subissues, for our consideration.
First, he contends that the venire from which the grand and petit juries were selected were so tainted due to improprieties in the selection process as to deprive the appellant of a fair trial and of due process of law. He points to two alleged irregularities. First, he contends that the grand jury was illegally constituted, because the deputy sheriff who received the venire facias was not sworn to keep the names secret; that the original venire facias was not signed, dated, or tested by the clerk or signed by the deputy who received it; and that the venire facias was not returned to the clerk.
The deputy who received the venire testified that he was not sworn to keep the names secret when the venire was delivered to him by the clerk. However, he knew that he was obligated to maintain the secrecy of the list, and further testified that he never revealed the names to any one who was not authorized to participate in the summoning of the veniremen. He testified that he signed for the list when the clerk released it to him.
The deputy clerk testified that the deputy sheriff signed a copy of the venire, but did not sign the original. She asked the deputy to swear to keep the list of prospective jurors secret, but did not have him raise his hand or otherwise formally administer an oath. The deputy responded that he would preserve the secrecy of the list, and she gave him the venire in a sealed envelope. The original venire was dated with the month and year, but not the day of the month. It was not signed by the judge or clerk. The sheriff's department did not make a written return of the original venire.
The appellant did not demonstrate how he was prejudiced by these deviations from the statutory procedures. He presented no proof of fraud.
TCA § 22-2-305(a) provides:
When the venire for any term of criminal court or circuit court shall have been drawn, as heretofore provided, the clerk of the court shall immediately issue the state's writ of venire facias to the sheriff of the county containing the names of the jurors so drawn, leaving off the number of the names and the initials, commanding him to summon said jurors for the term of court for which they were drawn, and he shall swear said sheriff when delivering said writ to keep secret the names of the jurors to be summoned and to caution said jurors when summoned to keep secret the fact that they are jurors until they are called as such in court.
TCA §§ 24-3-101-104 provide the form of the Book oath, oath with uplifted hand, affirmation and oaths in the forms of other countries or particular religious creeds. However, TCA § 24-3-105 provides that the oath is legally binding in whatever mode administered, unless the form is objected to at the time of the administration.
In Preston v. State, 115 Tenn. 343, 90 S.W. 856 (1905), the talesmen were improperly sworn, not having been required to kiss the Holy Bible. The defendant objected after the jurors had been elected and accepted. Although holding that the objection came too late, the Supreme Court noted that the issue was without merit. The Court there stated:
While in such matters it is the duty of the officers to follow the forms prescribed by law, and they should always do so, yet mere formalities are not, in cases of this kind, essential to the validity of the act, and, if there is a substantial compliance with the statute, the oath is obligatory and binding, which is all that is required.
Then quoting from Wharton, Criminal Law, § 1251, the Court further noted:
The fact that a person takes an oath in any particular form is a binding admission that he regards it as binding on his conscience, and a mere formal variation from the form of the statutory oath does not affect its obligatory character.
The statement by the deputy that he would keep the venire secret was substantial compliance with the requirement that the officer be sworn. His subsequent actions indicated his recognition that it was binding on his conscience and obligatory on him.
Irregularities in the procedures for the selection, summoning, and impaneling of juries do not affect the validity of the selection of a grand jury in the absence of fraud. TCA § 22-2-313.
In Flynn v. State, 203 Tenn. 337, 313 S.W.2d 248, 252-253 (1958), our Supreme Court in discussing de facto grand juries held:
The better rule and that which is supported by reason and authority is that there may be a de facto grand jury and when such a jury acts in the absence of fraud or prejudice or what-not, its actions are good.
* * * The statutes regulating the selection of grand juries are enacted for public reasons rather than for the benefit of any individual; they are intended to facilitate the selection of a jury, to equalize the burden of jury service, and to preclude the packing of juries or the selection of jurors with reference to particular matters and causes likely to be submitted to them for determination.
In the absence of any showing of fraud or prejudice, the indictment by the grand jury was valid, even though there was a minor deviation from the statutory procedure for summoning the venire. This aspect of this issue has no merit.
In the second aspect of this issue the appellant contends that the opening of the jury box by the trial judge and the ex parte discussion of the jury with the District Attorney General tainted the appellant's trial.
About five days before the jury selection began for this trial, the District Attorney General notified the trial judge that the venire list of over 300 potential jurors contained a disproportionate number of names from outside the city of Johnson City, where approximately 50% of the residents of Washington County live. Although there was no reason to suspect impropriety, the trial judge took the jury box into his chambers and checked a sample for proportionate representation. The judge pulled handfuls of names from the top, bottom, back, and front of the box. He examined 352 slips containing names and addresses of veniremen and found 280 were from outside the city, 48 from within the city and 24 that could not be determined from the addresses. Defense counsel were notified and after arguing their positions, the trial judge again checked another sample of 400 slips in the presence of two witnesses, finding 358 from the county and 42 were from the city. Instead of challenging the array of the venire already chosen for this case, counsel chose to challenge the judge for investigating this obvious discrepancy. By opening the box the trial judge was looking at the names and addresses of prospective jurors who would be called in this case only if the venire already drawn was exhausted. Although the jury selection process was protracted, the record does not indicate whether additional names had to be drawn. If they were not, the appellant could not complain about the opening of the box, since he was in no way affected. TCA § 22-2-310 provides that:
If for any reason the judge of either the circuit court or criminal court at any time discovers that the jury box has not been filled or renewed, or that the jury list has not been prepared or renewed as required by law, or the venire not drawn, or additional names not drawn as required by law on order made by such judge, or if the jury box has been tampered with, said judge shall have the right to investigate said jury box and also the jury list, either at chambers or in open court, and see that this part is duly enforced; and should it be discovered that any irregularities or frauds exist, correct the same.
Under this code section trial judges have supervisory and investigatory powers over the jury box and list. Buckingham v. State, 540 S.W.2d 660, 665 (Tenn.Cr.App.1976).
The appellant contends that it was error for the trial judge to exercise this power after having an ex parte discussion with the District Attorney General. He asserts that the trial judge may open the box only upon motion in open court.
The District Attorney General's ex parte communication with the judge concerned all jury trials before prospective jurors whose names appeared on the list. The record did not show that the appellant's name was even mentioned at this discussion. There is...
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State v. Bush
...added) Advisory Commission Comments, Tenn. R.Crim. P. 7. See also State v. Stephenson, 878 S.W.2d 530 (Tenn.1994); State v. Wiseman, 643 S.W.2d 354 (Tenn.Crim.App.1982). Therefore, Rule 7(c) is not applicable to the sentencing phase of the Tenn. R.Crim. P. 12.3(b) requires the State to prov......
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State v. Hall
...is unfairly or unduly prejudiced. See Woodruff v. State, 164 Tenn. (11 Smith) 530, 539, 51 S.W.2d 843, 845 (1932); State v. Wiseman, 643 S.W.2d 354, 362 (Tenn.Crim.App.1982). It is the responsibility of the defendant to show that he was clearly prejudiced by the trial court's refusal to sev......
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State v. Burton
...Hunter v. State, 222 Tenn. 672, 681, 440 S.W.2d 1, 6 (1969); State v. Coleman, 619 S.W.2d 112, 116 (Tenn.1981); State v. Wiseman, 643 S.W.2d 354, 362 (Tenn.Crim.App.1982); State v. Hopper, 695 S.W.2d 530 (Tenn.Crim.App.1985). The test for determining whether a trial court has abused its dis......
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