MAURY COUNTY (Transferred from Giles County)
The Honorable Jim T. Hamilton
(First-Degree Murder, Arson)
The opinion of the court was delivered by: Curwood Witt, Judge
In this capital case, the defendant, Pat Bondurant, was convicted by a jury of first-degree premeditated murder and arson. At a separate sentencing hearing, the jury found the following aggravating factors: (1) the defendant was previously convicted of one or more felonies involving the use or threat of violence, and (2) the murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind. See Tenn. Code Ann. § 39-2-203(i)(2) and (5) (1982). The jury found that there were no mitigating circumstances sufficiently substantial to outweigh the aggravating circumstances and sentenced the defendant to death by electrocution. *fn1
After the defendant filed a motion for new trial, counsel was allowed to withdraw and new counsel was substituted so that the issue of ineffective assistance of counsel could be raised. After a full hearing, the trial court entered an order denying the defendant's motion for new trial, and a notice of appeal was filed.
In this appeal, the defendant raises numerous issues that challenge the sufficiency of the evidence, the effectiveness of counsel, and that allege errors occurring during the guilt phase and during the sentencing phase of the trial. Having carefully considered the defendant's contentions as to the sufficiency of the evidence and as to errors occurring during both the guilt and the sentencing phases, and having decided that none affirmatively appear to have affected the verdict, we affirm the defendant's convictions.
At the guilt phase, the state presented the testimony of the defendant's wife, Denise Bondurant. Denise married the defendant in 1983, but they separated in August 1986 after a fight, during which the defendant had Denise, who was pregnant, on the floor, choking and hitting her, and holding a gun to her head. Denise's older sister broke up the fight, and Denise went to live with her in Athens, Alabama, for two months.
At the time, Denise had one child, Matthew, who was three years old and had cerebral palsy. In 1986, the defendant received Matthew's disability check from Social Security at a farmhouse in Elkton, Tennessee, where he and Denise had previously lived together. Denise and the defendant maintained some contact after the separation, and the defendant would give Denise the cash from Matthew's check each month. Because Denise did not work, she would call the defendant whenever she needed money.
In September 1986, Denise asked the defendant for money to help her move to Pulaski, and he told her that his wallet had been stolen the night before while he and the victim had been out drinking. The defendant assumed the victim had taken the wallet, which contained that month's disability money for Matthew.
In October 1986, Denise returned to Pulaski after Matthew's monthly check arrived, and she rented an apartment. On the day Denise picked up the money from the defendant, he made further remarks about the wallet being taken. The defendant indicated how embarrassed he was and how no one steals anything or takes anything from him or "little Matthew."
On Saturday, October 18, 1986, Denise needed more money from the defendant. She looked for the defendant at the victim's house, but no one was home. She then went to the Pulaski Rubber Company, where the defendant worked, because he was to be there by 11 a.m. to work overtime. After learning the defendant was not coming to work until 3 p.m., she returned to the Pulaski Rubber Company around 2:30 p.m. and waited for the defendant to arrive. The defendant arrived around 2:45 p.m., driving his old white Plymouth or Dodge. The defendant parked his car next to Denise's car, and she noticed blood smeared on the rear fender of the passenger's side. When Denise asked the defendant about the blood, he instructed her to sit in the car and act like she was sick while he ran into the plant to wet some paper towels. The defendant returned with the paper towels and handed part of them to Denise. He told her to start wiping her face. While Denise did this, the defendant wiped the blood off of his car.
In explaining the discovered blood, the defendant told Denise that the night before, he and the victim had been playing cards at the victim's house when the defendant caught the victim cheating. Both men were drinking quite a bit, and when the defendant started thinking about his wallet being stolen, about Matthew's money being taken, and about the victim cheating, the defendant just "went off" on the victim and started beating him with a small rocking chair that was in the victim's house. The defendant told Denise that he continued beating the victim and telling him no one steals from "little Matthew" thirty minutes after the victim was dead. He also told Denise that only a small piece of the rocking chair was left when he stopped. Afterwards, the defendant put the victim's body in the bathtub and called Mark Marrow at the Shady Lawn Truck Stop in Elkton and asked him to go across the street to the farmhouse and get Pete Bondurant, the defendant's identical twin brother. Pete came to the victim's house and assisted the defendant in cutting up the body in the victim's bathtub.
The defendant told Denise that he and Pete cleaned the bathtub and poured Drano down the drain in case there was any loose hair or blood. Then the defendant and Pete loaded the body and took it to Westpoint, Tennessee, where the defendant's parents had a house. The defendant and Pete burned the body on the property approximately five feet outside the back door of their parents' house. Because Denise had pointed out the blood on the car, the defendant told her she was entitled to one-third of the burial expenses, meaning any money found on the person at the time of the murder. Denise noticed that one of the twenty dollar bills the defendant gave her had blood on it.
Denise saw the defendant later that night when he came to her apartment to take a bath. The defendant left around 12:30 or 1:00 a.m. to go to Westpoint because he had work to do there. Denise again saw the defendant on the afternoon of Sunday, October 19, 1986, at the farmhouse in Elkton. The defendant, Pete, and their friend Rodney Randolph, were at the house when Denise arrived. All three were on the front porch drinking and using narcotics. When Denise first walked up on the porch, the defendant pointed to a corner of the yard and said "that's what's left of Hippy." (The victim's nickname was "Hippy.") In the direction where the defendant was pointing, Denise saw a big round lump smoking in the yard. The victim's body had been moved from Westpoint to Elkton because the defendant and Pete became paranoid and wanted to be close to town where they could hear any news concerning the victim's disappearance.
The defendant explained to Denise that to burn the body, they had to get the temperature very hot and that he had used rubber from work. She testified that it took two and a half days to burn the body. When questioned about why the body was smoking after only one and a half days, Denise testified that she had already witnessed one burning before that took two and a half days, referring to the Dugger murder. *fn2 Denise was allowed to testify that in the prior case, the body had not been cut up before it was burned.
That afternoon, Denise stayed at the farmhouse between 30 minutes to an hour. The four of them then went to the Tennessean Truck Stop. At the defendant's request, Denise called the Pulaski Rubber Company and pretended to be Joyce Gaines, the victim's wife, and reported the victim off from work until Tuesday. The four then went to a hospital in Lewisburg, Tennessee, where Randolph used Pete's Medicaid card to see a doctor and obtain a prescription. Denise then took the three men back to Elkton. When asked why she did not leave earlier, Denise testified that she was afraid, just as she had been when Dugger was killed.
Christopher Johns, a security guard at the Pulaski Rubber Company, confirmed that he received a call on Sunday, October 19, 1986, from someone purporting to be the victim's wife. Johns took a message and laid it on the foreman's desk. On October 20, at approximately 12:50 p.m., Tommy Hodge, the office manager at Pulaski Rubber Company, received a telephone call from someone purporting to be the victim. Hodge told the person to hold while he transferred him to the plant manager; however, the person hung up. In Hodge's opinion, the person on the phone was not the victim, and a note was placed in the victim's file. According to the victim's time card, the last day he worked was Friday, October 17, 1986. Although the victim was scheduled to work on Saturday, October 18, he did not show up. The victim was also absent from work the entire next week. The victim's last paycheck, dated October 17, was endorsed on the back with the signatures of the victim and the defendant. The check was cashed on the same date. The victim's final paycheck, dated October 24, was never picked up.
On Wednesday, October 22, the victim's house burned. The next day, Denise went to the Pulaski Rubber Company during the defendant's dinner break to ask for more money. The defendant asked if she knew about the victim's house burning. The defendant suggested Denise should drive by to see the house, which she did.
Later that night, around 10:45 p.m., Denise went back to the Pulaski Rubber Company to pick up the defendant. While she was waiting, Pete showed up. When the defendant came out, Pete told Denise how he took a candle and set it in the middle of the bed in the front bedroom of the victim's house. He put sheets around the lower part of the candle so that when the candle burned down, the sheets would catch on fire, giving Pete time to get away before the fire ignited. The three of them drove by the victim's house, and the defendant said that the victim got what was coming to him. The defendant, however, had been at work when the fire started.
Joyce (Gaines) Spurgeon testified that she was married to the victim at the time of his disappearance. On October 11, 1986, Spurgeon and her daughter Loretta Teeples left the victim after a fight and went to live with Spurgeon's other daughter. Spurgeon went back to the house to get some clothes for her daughter on the morning of October 20. When Spurgeon opened the door to her daughter's bedroom at the front of the house, she noticed the carpet had been cut around the furniture and only the foam padding was left. Spurgeon also noticed that an electric blanket was spread out at the foot of the bed. Spurgeon became frightened, so she took some of her daughter's clothes and left the house.
Later that evening, Spurgeon returned to the house with both daughters to pick up more clothes. Spurgeon and Loretta noticed that the phone in the living room was missing. Loretta testified that there were "beer cans and stuff everywhere." They also noticed that the comforters from the master bedroom and from Loretta's bedroom were missing. Loretta testified that the carpet in her room had been cut out around the furniture, the bed looked slept in, and a blanket was at the foot of the bed. A wooden jewelry box, her bedspread, and a small black and white television were missing from Loretta's room. Neither Spurgeon or Loretta noticed any blood or signs of a fight.
Although Loretta did not include it in her statement to William E. Coleman, a special agent with the Tennessee Bureau of Investigation ("T.B.I."), and did not notice it on October 22, 1986, she testified that there had been a small rocking chair in her room. She had not seen the rocking chair since she left home on October 11, 1986.
Ann McGill, the victim's sister, testified that she went to the victim's house the morning after the fire to see if the victim needed help. McGill went in the front door, but the victim did not answer when she called. The house was in disarray, the victim's boots, which he always wore, were sitting at the end of his bed, and his snuff was sitting on the table. McGill did not see any blood.
Following the victim's disappearance, Spurgeon was granted a divorce on grounds of desertion for a period of one year preceding the filing of the action. Spurgeon never saw or heard from the victim after she left him on October 11, 1986.
Frank Collins, the Pulaski Fire Chief, received a call at 11:47 p.m. on October 22, concerning the victim's house being on fire. Flames were coming out of a bedroom window located on the left front part of the house. The fire was put out before it spread to the rest of the house; however, the other rooms were charcoaled from the smoke. Collins believed the fire started in the bed located in the front bedroom.
Lane Roberts, detective sergeant for the Pulaski Police Department, investigated the fire at the victim's residence and the victim's disappearance. The victim was reported missing at 9 p.m. on October 23, after the fire. Roberts became involved in the case on October 24. From his investigation, Roberts determined that the last person to see the victim alive was the defendant on October 17. Roberts was unable to substantiate any alleged sighting of the victim after that date.
In his initial statement to Roberts, the defendant said he took the victim, who was drunk, home on October 17, after they got off work at 11 p.m. The defendant said he then stopped by the Corner Canteen and went home to Elkton. On October 28, the defendant gave Roberts a similar statement. The defendant added that he, Denise, and the victim went to the bank together on Thursday, October 16 to cash the victim's check; however, the returned check was dated October 17 and had been cashed on the same day. The defendant also told Roberts that he went looking for the victim at his house on October 22, the day of the fire, but was unable to find him.
Jerry Dickey, an arson investigator with the State Fire Marshall's Office, was in charge of the Fire Marshall's investigation of the fire at the victim's residence. From his investigation, which began November 3, he ruled out any accidental causes and determined that the origin of the fire was in or around the bed in the front bedroom. The fire appeared to have lasted 45 minutes to an hour before being discovered. The call reporting the fire was made at 11:47 p.m., and Dickey estimated that the fire started between 10:47 and 11:02 p.m.
As part of their joint investigation, Dickey and Roberts interviewed several people, including Denise and the defendant. Denise told them that the defendant came over to her apartment immediately after work on October 17 and did not leave until 2:00 or 3:00 a.m., if at all, on October 18. During their interview with the defendant, he gave the following statement:
On 10-17-86 me and Denise went over to use the phone at Ronnie's house to call Columbia, to get a phone put in Denise's apt C-8 Country Side Village, I left my car at Ronnie's which is a 1964 Ply Fury white Denise took me and Ronnie to town First National Bank an then back to Ronnie's house, Ronnie and I left in my car and went to Dixie Food got a plate for supper and brought to work with us, we also went to Wall Mart, where I bought some toiletries,
After ward on 10-17-86 I left, Ronnie left with me we went to Village Market I bought a cold drink and Ronnie bought a cross-word puzzle book. I let Ronnie out at his house and I went to Western Lounge, it was band night.
After leaving the Western Lounge I went to West Point in Lawrence Co. I stayed with my brother Pete on the 18th of Oct I called in that I would be late. Ronnie did not report to work that night.
On 10-19-86 I was off work. On 10-22-86 I went by Ronnie's house before work I stopped in and Ronnie was not at home or at least he did not answer when I called out for him, I did not go past the kitchen.
The defendant admitted he had not gone home that night to Elkton. Instead, the defendant said that he met Terri Lynn Clark, his girlfriend, at the Western Lounge on October 17 and took her to the house in Westpoint where he and his brother Pete had sex with her. The defendant asked Dickey not to write this in the report because he did not want his wife to find out. Dickey agreed not to write it down but advised the defendant he would have to verify the defendant's story with Clark. Dickey attempted to talk with Clark on November 17; however, when he found her at the farmhouse in Elkton, she was dead. He did not testify as to the cause of her death.
When the victim's house burned down, the defendant told Carmen Woods, a co-worker, that he thought the victim "had burnt the house himself and run off." A few months later, a newspaper was laying on the table in the break room, and the defendant and Woods started looking at an article concerning the victim's disappearance. The defendant stated that anybody who would steal from Matthew would never steal again and that he would make it where the family could not receive the insurance money if they were unable to find the body. Then the defendant started to walk off but turned around and said "yeah, I killed the son of a bitch." Woods described the defendant as "jittery" when he said this. The defendant told Robert Kelton, another co-worker, there "wasn't no S.O.B. going to steal his crippled son's welfare check and get by with it."
After the defendant's wallet was stolen, the victim started riding home from work occasionally with Jeffrey Strickland, a co-worker at the Pulaski Rubber Company. Shortly before the victim disappeared, the defendant told Strickland that he and Pete were going to catch him and the victim and pull the victim out of Strickland's car. After the victim disappeared, Strickland heard the defendant comment that the victim had joined the Foreign Legion.
Approximately a month before the victim disappeared, William Wade Bass saw the defendant and the victim at the Western Lounge. Bass noticed a wallet on the floor and picked it up. Outside the bar, Bass realized the wallet belonged to the defendant, but he took the cash and cashed a check which was already endorsed.
In the Spring of 1987, Denise and the defendant went to the house in Westpoint to cut the grass for the defendant's parents while they were away. While cleaning up the backyard, the defendant found a four-inch bone at the spot where he had burned the victim's body. When they left, the defendant took the bone and threw it out the window while driving down Westpoint Highway.
In February 1990, Denise talked to the authorities about the victim's murder. During this time, Denise continued to see the defendant, and the defendant stayed with her two nights a week. Denise gave a written statement to T.B.I. Special Agent Coleman on May 1, 1990. After that, Denise had several meetings with the district attorney's office and with police authorities, although some of the meetings concerned other cases.
Denise admitted that she had lied in her previous statement to Dickey and Roberts in order to protect the defendant. Denise indicated that she waited to talk to authorities because she was afraid of the defendant and Pete after the Dugger murder. Denise testified that she had been told if she went to any law enforcement officials about what happened to Dugger, the defendant and Pete would blame the whole thing on her. The defendant asked Denise if she wanted to have her baby in prison and asked who she thought the authorities would believe. Denise did not file for divorce from the defendant until June 1990, after the defendant was arrested. She explained that there was no point in filing for divorce sooner because the defendant had told her "united we stand and divided we fall." On redirect, Denise explained that the defendant's statement meant that as long as the three of them stood together, nobody would go to jail; however, if one of them were to fall, all would go to jail.
On cross-examination, Denise admitted she had disobeyed a court order allowing the defendant's parents visitation of their grandchild and that a contempt petition had been filed against her. Denise also admitted that she had used drugs, only stopping while she was pregnant, and then starting up again until the defendant's arrest.
After taking Denise's statements on May 1, 1990, Agent Coleman obtained a warrant to search the residence in Westpoint for bone fragments or any other human body parts. On May 8, Agent Coleman went to the residence with a team of forensic anthropologists and the State Fire Marshall's Office. After the Fire Marshall's trained accelerant detection dog alerted on an area determined to be the spot described by Denise, the anthropologist began digging. Denise, who arrived later, confirmed that the anthropologists were digging where the defendant said he burned the body. The presence of evaporated kerosene was identified in one of the soil samples taken from the location.
Dr. William M. Bass, head of the anthropology department at the University of Tennessee, was in charge of the excavation at the Bondurant property in Westpoint. Their excavation revealed burned human cranial fragments mixed with charcoal and burned soil. Dr. Bass found seven cranial bone fragments that were large enough to make positive identifications. While the other bone fragments were too small to positively identify the area of the skull they came from, he was certain that they were human skull fragments. From studying the larger fragments, Dr. Bass testified that the bones appeared to have been broken before being burned, and that the irregular broken edges suggested that blunt trauma had occurred. He was more than 50% certain that some force had been applied to the skull before it was burned. Moreover, based on the thickness of six larger fragments that could be measured, Dr. Bass was 75% certain that the bones were from a human male, and he was 90% certain that the bones had been there one to fifteen years.
Several witnesses testified on behalf of the defense. Kathrine McCloskie, the victim's neighbor, testified that she saw the victim mowing his yard on Monday, October 20, 1986. McCloskie also saw a 200-pound man in an old white car drive up to the victim's house around 5 p.m. on the day of the fire. The man went into the house, stayed a few minutes, and then left. In rebuttal, Detective Roberts testified that after talking with McCloskie on October 26, 1986, he walked over to the victim's yard to look at the grass and decided that it was too high to have been cut on October 20. Charles "Buster" Stanford visited his grandmother, who lived across the street from the victim's house, at least once a day. He testified that he saw the victim standing out on the street with a brown paper sack around 2:00 or 3:00 p.m. one day during the week of the fire.
Mark Marrow worked at the Shady Lawn Truck Stop across the street from where the defendant and Pete lived in Elkton. He did not recall taking any messages to the defendant or to Pete, and he never gave either of them a ride to Pulaski. However, during an earlier interview with Agent Coleman in November of 1991, Marrow admitted that he had received calls from one of the twins asking him to get a message over to the other at the farmhouse. When talking to Agent Coleman, Marrow remembered delivering such messages on various occasions. He also remembered on at least one occasion giving one of the twins a ride to Pulaski, although he did not remember doing so on October 17, 1986.
Rodney Randolph testified that he had no recollection of seeing or having a conversation concerning a smoking or burning lump in the yard at Elkton. Randolph also denied having ever been treated at the Lewisburg Community Hospital. On cross-examination, Randolph testified that in 1986, he lived with the twins at Elkton during the week, but he stopped staying there after Terri Lynn Clark was found dead in the house. After the victim disappeared, Randolph heard the defendant jokingly say that the victim had joined the French Foreign Legion. Randolph told Agent Coleman that Denise had called someone in sick, but he did not know who or when that was. The defendant told Randolph if you cut a body up in pieces and scatter it over four or five states, it would be hard to make a case because there would be no body.
In the Fall of 1986, Travis Tidwell checked on the elder Bondurants' house in Westpoint every week to two weeks while they were out of town. Because he had once been burglarized when he had owned the house, Tidwell would drive up and circle around to the back, paying close attention to the back door area. During that time, Tidwell never saw anything burning or smoking or any sign that something had been burned.
The defendant, who was 36 years old at the time of the trial, testified on his own behalf. Since December 3, 1973, he had worked with the victim at the Pulaski Rubber Company making rubber flooring for school buses. The defendant testified that he and the victim were good friends. Shortly before the victim disappeared, the defendant even co-signed a note for the victim so he could buy furniture.
The last time the defendant saw the victim was on October 17, 1986, when he took him home after work at 11 p.m. While the defendant did not remember that particular night, their usual routine was to go to the store after work, and then the defendant would take the victim home. Afterwards, he would go to the Western Lounge (called the Corner Canteen for a short period of time) until it closed at midnight. The defendant thought he went to Westpoint that night. The next day, the defendant was to be at work at 11 a.m.; however, he overslept and did not call in late until 12:17 p.m., based on his mother's phone bill from Westpoint.
The defendant denied killing the victim, stating that he did not have a reason to be angry with him at that time. The night he lost his wallet, the defendant went to the victim's house to look for it and to confront the victim, but he was satisfied that the victim did not have it. A week later they were back to riding and drinking together.
The defendant went by the victim's house on the afternoon of the fire to make the victim go to work so he would not be fired. The defendant called out for the victim, but no one answered. The defendant saw the fire when he left the Western Lounge that night but did not stop because he had been drinking. For the most part, the defendant could not remember what he said to investigators and denied making incriminating statements to Denise or to his co-workers.
Based on this evidence, the jury found the defendant guilty of first-degree murder and arson.
At the sentencing hearing, the state introduced the judgment document as proof of the defendant's conviction of second-degree murder for the death of Gwen Dugger in 1991. As to the heinous, atrocious, and cruel aggravating factor, the state relied on the proof at the guilt phase.
The defense presented the testimony of the defendant's mother. The defendant's father was unable to testify because of his health. Mrs. Bondurant worked for the Department of Army for twenty-nine years and six months. Because of the defendant's arrest, Mrs. Bondurant had to retire in order to take care of her husband. Her last post was at Redstone Arsenal in Huntsville, Alabama. From 1984 to 1987, Mrs. Bondurant worked mostly in Germany. During this time, she would return to the United States once or twice a year, and her husband would return every three months.
While the Bondurants were out of town, their son Pete lived at the house, and the defendant lived there some too. For two of the years they were gone, the Bondurants rented the house to someone else. When out of the country, the Bondurants talked with the twins at the house in Westpoint almost every weekend.
The Bondurants moved back to Westpoint in September 1989. The defendant helped them wash windows, unpack boxes, move furniture in the house, and move furniture to Mrs. Bondurant's apartment in Huntsville. Mrs. Bondurant testified that the defendant worked regularly at the Pulaski Rubber Company for 17 years until the time he was arrested. She testified that the defendant was a good son and stayed with her ill husband at least three or four days a week, enabling Mrs. Bondurant to work. During the time Mrs. Bondurant was working in Huntsville, she normally stayed at her apartment Monday through Thursday and came home on weekends. Occasionally she would come home during the week.
From September to November of 1989 and from January to the first of April 1990, the defendant brought his son to see them on weekends and would spend the night. Mrs. Bondurant testified that they were a close and loving family. Mrs. Bondurant and her husband of 39 years had two other children, a married son with four children, who was a social worker in Delaware, and a married daughter in Lawrenceburg, Tennessee.
Based on this proof, the jury sentenced the defendant to death for the murder of William Ronnie Gaines.
A. Fair Cross-Section of the Community
First, the defendant argues that because of deviations from the mandated procedures in selecting the original jury venire, and because of the resulting prejudice to the integrity of the judicial process and the public's confidence in the administration of Justice, this matter should be remanded for a new trial. In addition, the defendant argues that counsel was ineffective by failing to raise these objections before trial. We find no reversible error.
At the hearing on the motion for new trial, the defendant presented proof tending to show that the jury selection procedures employed in Maury County violated several provisions of Tennessee Code Annotated sections 22-2-101 to -309. *fn3 There was proof that jury commissioners for Maury County were notified by the circuit court clerk's office when they needed names for the jury box. Each commissioner picked names from his or her districts at random from the voter registration books and sometimes from the telephone directory, trying to find people of each age, gender, and race, and people with good voting records. One commissioner also looked for persons who did not have criminal records. Tabs were only kept on the number of names picked from each district. If one of the commissioners knew that someone was a doctor, a nurse, an attorney, or a minister, the name would not be listed. The commissioners would write the names, addresses, and districts on a legal pad and give them to the circuit court clerk's office so the names and districts could be typed on slips of paper.
When names were drawn from the jury box, someone in the clerk's office would be blindfolded or would look away while drawing the names. The chairman of the jury commission then read out the districts, and another commissioner tallied the number of names from each district. The names were already in the jury box when the commissioners arrived for the drawing. If they knew that a person was dead or had moved away, that person's juror slip was set aside. Once the names were drawn, the commissioners did not make a list of the names, seal the list with the actual slips, or put them in an envelope to give to the trial court. Instead, the jury commissioners only certified the number of names drawn.
One jury commissioner remembered being sworn in when he was initially appointed; however, another jury commissioner did not remember taking an oath. Joe H. Scott, the circuit court clerk for Maury County at the time of this trial, testified that he did not take a separate oath of office as clerk for the jury commission. However, he testified the commissioners always took an oath upon reappointment. Scott testified there was no master list of all the names eventually put in the jury box; instead, the clerk's office had an attendance book with the names of people who reported for jury duty and were chosen by the court to serve as jurors. Contrary to the testimony of the commissioners, Scott testified that the commissioners put the names in the jury box. He confirmed that normally one of the deputy clerks would be blindfolded or would turn her back while drawing the names. After the names were drawn, they would be divided into districts, and the clerks would type the summons list. Scott testified that the slips of paper with the names on them were put in an envelope and kept in the vault until there was no room for them, as were the summons lists. At the time of the hearing, the oldest jury cards left in the vault were from 1992.
Scott prepared the report of how many jurors were drawn on a specific day, and all three commissioners would then sign it. After the summons list was typed, a copy was placed on the bulletin board in the courthouse for public viewing, and the original was sent to the sheriff's office for service. If a summons letter was returned undelivered, the person's name was marked off. After two or three years, these letters were thrown away. When the vault was cleaned out periodically, the original juror tickets were thrown away. Scott testified that the court was not given a list of the names drawn from the jury box with the original tickets in a sealed envelope.
When a group of jurors reported for duty, roll was taken, and the names of jurors who did not answer were laid aside. The rest of the tabs were placed in a shoe box and handed to the Judge. The bailiff took the jurors' information cards as they took their seats in the box. When the box was full, the bailiff returned the cards to Scott, who clipped and marked them by panel number. Then the cards were sent to the circuit court clerk's office so that the master list could be typed. If a juror brought a doctor's certificate, Scott removed his or her name from the list. Otherwise, the court decided whether someone should be excused.
After the names were drawn, people would call the clerk's office trying to avoid jury service. While some of the deputy clerks told them to bring a doctor's excuse on the day of service, others personally excused physicians, school teachers, persons over 65, and any professional people without asking for approval from the trial Judge.
The sheriff of Maury County, who was never sworn to secrecy or served with a writ of venire facias, summoned jurors by regular mail based on the list sent from the clerk's office. Any notices returned because of insufficient address, wrong address, or because the juror had moved, were returned to the clerk's office. These potential jurors were never resummoned, nor was the sheriff instructed to bring them to court for failing to appear.
The defendant claims that the enumerated statutory violations require that his conviction be reversed without a showing of actual prejudice and the case be remanded for a new trial under State v. Lynn, 924 S.W.2d 892 (Tenn. 1996). We find that Lynn does not apply to the facts of this case. In Lynn, our supreme court held that a "flagrant, unreasonable, and unnecessary" deviation from the statutory special venire selection procedure, following the trial court's finding of jury tampering with the original venire, constituted reversible error even though the defendant was unable to demonstrate actual prejudice. Id. at 894.
In denying the defendant's claim as presented upon the motion for new trial, the trial court made the following findings: The Defendant next claims that his conviction should be set aside because Maury County officials departed in certain respects from the statutory procedure for selecting the petit jury voire . At the hearing on this matter, the Defendant asserted thirty-one purported statutory violations, all falling under Title 22, Chapter 2 of the Tennessee Code governing selection of jurors. Defendant is not entitled to relief on this claim despite the departure noted above, because Tennessee Code Annotated, see 22-2-213, specifically provided that in the absence of fraud, no irregularity with respect to any of those provisions shall affect the validity of any verdict rendered by a trial jury unless pointed out by the Defendant before the jury is sworn. In this case, I find no showing of fraud and this issue was first raised in this Motion. This issue is without merit and is overruled.
As cited by the trial court, Tennessee Code Annotated section 22-2-313 provides:
In the absence of fraud, no irregularity with respect to the provisions of thispart or the procedure thereunder shall affect the validity of any selection ofany grand jury, or the validity of any verdict rendered by the trial jury unlesssuch irregularity has been specially pointed out and exceptions taken theretobefore the jury is sworn.
Here, the defendant failed to take issue with the original venire before the jury was sworn. Accordingly, this issue was waived. Tenn. R. App. P. 36(a). Regardless, application of Lynn is limited to extraordinary circumstances which do not exist as to the original venire in the present case. Notably, in Lynn, without notice to either party, the trial court directed the court clerk to draw new names for a venire after it found evidence the original venire was tainted by jury tampering. The court clerk opened the jury box in his office, unsealed it, and drew sufficient names to constitute a special jury panel. Counsel was not supplied a list of the names until immediately before jury selection. Lynn, 924 S.W.2d at 894.
The supreme court found that the statutory requirements for selecting a special venire were totally disregarded after the original venire was tainted by jury tampering:
he statutes are explicit. The procedures required are detailed. This judicial proceeding had already been discolored by the trial Judge's earlier findings of jury tampering. The fundamental principles of impartiality, disinterestedness, and fairness are even more essential in a case, such as this, in which a previous attempt to circumvent fairness has occurred.
Often, the public sees in our Justice system something substantially different from what actually exists. It is the appearance that often undermines or resurrects faith in the system. To promote public confidence in the fairness of the system and to preserve the system's integrity in the eyes of the litigants and the public, "Justice must satisfy the appearance of Justice." Offutt v. United States, 348 U.S. 11, 13, 75 S. Ct. 11, 13, 99 L.Ed.11 (1954).
Lynn, 924 S.W. at 898. Accordingly, absent extraordinary circumstances, as set out in Lynn, the defendant still has the burden of demonstrating prejudice from the failure to follow the technical procedures of Title 22. See State v. Coleman, 865 S.W.2d 455, 458 (Tenn. 1993). In the present case, the defendant concedes that he is unable to show prejudice. We fail to find sufficient similarity between Lynn and the case at bar to warrant the extraordinary remedy afforded the defendant in Lynn.
Accordingly, the defendant's claim of ineffective assistance must also fail. When a defendant seeks relief on the basis of ineffective assistance of counsel, he must first establish that the services rendered or the advice given was below "the range of competence demanded of attorneys in criminal cases." Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Second, he must show that the deficiencies "actually had an adverse effect on the defense." Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 2067 (1984). There must be a reasonable probability that but for counsel's error, the result of the proceeding would have been different. Id., 466 U.S. at 694, 104 S. Ct. at 2068; see Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim. App. 1985). Should the defendant fail to establish either factor, he is not entitled to relief. Here, regardless of the technical violations in calling the original jury venire, the defendant has failed to show prejudice. Therefore, his claim of ineffective assistance is also without merit.
The defendant also argues that because of the deviation from the mandated selection procedure in selecting a special jury venire for this case and because of the resulting prejudice to the integrity of the judicial process and the public's confidence in the administration of Justice, this matter should be remanded for a new trial.
When it became apparent that there would not be enough potential jurors to complete the panel in this case, the trial Judge directed the court clerk to have more jurors called. The testimony was unclear as to who opened the jury box and drew the names, but it was evident that the jury commissioners did not, nor did the trial Judge in open court. The deputy clerks then took the names that were drawn and looked up the phone numbers. If the address on a juror slip did not match the address in the phone book, the slip was set aside. Moreover, if the deputy clerk knew the person's work number, she would try to reach the person there. One deputy clerk testified that people called back in the afternoon to see if it was a joke because they had never been called to jury duty in this manner before. No master list was made of the names drawn or summoned, and nothing was done to those persons who did not respond.
Trial counsel objected to the special venire right before the jury was sworn. In support of the motion, the defense presented the testimony of the circuit court clerk. After argument on the motion, the trial Judge overruled the motion, stating that "he defense counsel agreed to this method of selecting the jury. We have a full cross section of the citizens of this county."
While the defendant does not show actual prejudice, he argues that the integrity of the system was prejudiced as in Lynn, 924 S.W.2d 892.
Under Tennessee Code Annotated section 22-2-308(a)(2)(1980), the following procedures were to be followed in the event a special venire became necessary:
In the event by reason of the disqualification of proposed jurors, or other cause, the required number of jurors cannot be obtained from the venire, the clerk of the court shall produce in open court the jury box, and the box shall be opened by the court and there shall be drawn therefrom, as directed by the court, the number of names deemed by the Judge sufficient to complete the juries. This process shall, if necessary, continue until the grand and petit juries are completed; but the Judge of the court instead of following the last mentioned procedure may, if the Judge shall deem proper, furnish a sufficient number of names of persons to be summoned to the sheriff, or the Judge may, if the Judge thinks proper, direct the sheriff to summon a sufficient number to complete the juries.
Although the statutory procedures for calling a special venire were not properly followed in this case, we find that the circumstances do not require reversal as in Lynn, without a showing of actual prejudice to the defendant, which has not been made.
Again, in determining that failure to comply with the statutory requirements was reversible error, the supreme court described the violations found in Lynn:
The clerk, not the Judge, opened the box. The box was opened in the clerk's office, not in open court and not in the presence of the Judge. The clerk, not the Judge, drew the names and resealed the box. Neither party was advised that a new panel was being drawn. These circumstances, unlike those present in prior cases, are not an insignificant departure from technical statutory requirements. Rather, they represent a complete deviation from the directives established by our legislature.
The court went on to distinguish the facts in Lynn from previous cases where the deviations from the statutory procedure were relatively minor and were either inadvertent or were necessitated by circumstances beyond the control of the court. The court distinguished these violations because the "judicial proceeding had already been discolored by the trial Judge's earlier findings of jury tampering. The fundamental principles of impartiality, disinterestedness, and fairness are even more essential in a case, such as this, in which a previous attempt to circumvent fairness has occurred." Lynn, 924 S.W.2d at 898. Based on these findings, the supreme court went on to hold:
Because strict adherence to statutory jury selection procedures is essential to the integrity of the judicial process and the instilling of public confidence in the administration of Justice, we hold that proof of actual prejudice is not required in circumstances such as this when the deviation is flagrant, unreasonable, and unnecessary.
Unlike the situation in Lynn, in the present case, time was of the essence in obtaining more jurors. The original venire was exhausted, and more jurors were needed by the next day. Moreover, while the defendant objected before the jury was sworn, he contributed to the situation by failing to object when the trial court announced that the clerk would be calling a special venire. The facts of this case are further distinguished in that there was no initial taint to the original venire from jury tampering as in Lynn. We read Lynn, in conjunction with Tennessee Code Annotated section 22-2-313, as applying narrowly to the facts of that case. Specifically, not only were the procedures for selecting a special venire violated, counsel was not notified of the calling of a special venire, and there were claims of jury tampering. Based on these cumulative errors, the supreme court was compelled to reverse the conviction in Lynn. The circumstances of this case do not require the same result without a showing of prejudice, which the defendant has failed to do. This issue has no merit.
B. Systematic Exclusion of Women From Petit Juries in Maury County *fn4
The defendant contends that the representation of women, a distinctive group in the community, on the jury summons lists in Maury County was not fair and reasonable in relation to the number of women over the age of 18 in the community. The defendant contends, based on statistical data, there is an absolute disparity of 16%, a comparative disparity of 30%, and a discrepancy of 19.6 standard deviations. Moreover, the defendant submits that women have been consistently under represented on every Maury County summons list issued between February 1989 and the defendant's trial in December 1991. To the extent trial counsel failed to bring meritorious errors to the trial court's attention, the defendant contends he is entitled to relief based on ineffective assistance of counsel.
While the state asserts that this issue has been waived, we note that in Charles Walton Wright v. State, No. 01C01-9105-CR-00149 (Tenn. Crim. App., Nashville, April 7, 1994), perm. app. denied (Tenn. 1994), cert. denied, 513 U.S. 1163, 115 S. Ct. 1129 (1995), this Court held that the state's claim of waiver for the first time on appeal could "defeat substantial Justice if there was potential merit ... to a claim of constitutional wrongdoing and the parties proceeded in the trial court without litigating or intending to litigate the issue of waiver." Charles Walton Wright, slip op. at 34. However, if the substantive claim had no merit, a remand is unnecessary. Id. At the hearing on the motion for new trial, the state did not present proof or argument on this issue. Moreover, although invited by the trial court to file a written response, the record does not reflect that a response was filed by the state. As such, the state is in the position of raising waiver for the first time on appeal. Accordingly, a review of the substantive claim is necessary; however, we find this issue is without merit.
In denying relief, the trial court stated:
he Defendant asserts a violation of his right to an impartial jury selected from a fair cross-section of the community due to systematic exclusion of women from Maury County Petit juries. While Defendant has raised the issue of systematic exclusion in his Motion, his argument goes to underrepresentation. (See transcript of Motion for New Trial, pg. 157 et. seq) The Court finds that the proof in this case does not support a claim of systematic exclusion of women from petit juries of Maury County and that the Defendant, a white male lacks standing to assert an equal protection violation as to under-representation of women on the Maury County Petit juries.
The United States Supreme Court has held that a male has standing to challenge the constitutionality of the exclusion of women from jury service. Taylor v. Louisiana, 419 U.S. 522, 526, 95 S. Ct. 692, 696 (1975). In Taylor, the court further held that the systematic exclusion of women is violative of the right to a petit jury selected from a representative cross-section of the community and guaranteed by the Sixth Amendment right to a jury trial. Taylor, 419 U.S. at 531, 95 S. Ct. at 698. Petit juries actually chosen, however, are not required to mirror the community or reflect the various distinctive groups in the population. Taylor, 419 U.S. at 538, 95 S. Ct. at 702.
In Duren v. Missouri, 439 U.S. 357, 99 S. Ct. 664 (1979), the Supreme Court set forth a three-pronged test for determining whether a jury was properly selected from a fair cross-section of the community:
(1) that the group alleged to be excluded is a "distinctive" group in the community;
(2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and
(3) that this under representation is due to systematic exclusion of the group in the jury-selection process.
Duren, 439 U.S. at 364, 99 S. Ct. at 668. This test was first applied by this court in State v. Nelson, 603 S.W.2d 158, 161 (Tenn. Crim. App. 1980), and later by our supreme court in State v. Buck, 670 S.W.2d 600, 610 (Tenn. 1984).
The defendant has met the first prong of this test, in that women are a "distinctive" group in the community. State v. Thompson, 768 S.W.2d 239, 246 (Tenn. 1989), cert. denied, 497 U.S. 1031, 110 S. Ct. 3288 (1990). Moreover, if the unchallenged venire statistics are accurate, the defendant has demonstrated that the representation of women in the venire from which his jury was selected was neither fair nor reasonable under Adkins v. State, 911 S.W.2d 334, 353 (Tenn. Crim. App. 1994). According to the statistical proof presented by the defendant, women made up 53% of Maury County's population in 1990, yet the average percentage of women summoned on the venire lists from February 1989 to December 1991 was only 37%.
Regardless, the defendant has failed to show that this under-representation was due to systematic exclusion of women in the jury-selection process. In Taylor, the petitioner was able to point to a particular Louisiana constitutional and statutory requirement that systematically excluded women from the jury-selection process. Taylor, 419 U.S. at 524, 95 S. Ct. 694-95. The petitioner in Duren was able to demonstrate that a large discrepancy had occurred in every venire for a period of nearly a year. The facts supported a determination that under-representation of women was systematic or inherent in the particular jury-selection process utilized. Duren, 439 U.S. at 365-66, 99 S. Ct. at 669.
Here, the proof showed that the jury commissioners compiled lists of jurors from the voter registration books for their districts and from the telephone directory. When making the initial lists, they would automatically exclude those persons who they knew would be exempt from service, such as doctors, nurses, attorneys, and ministers. However, the commissioners testified that they tried to ensure that a fair cross-section of jurors was selected. The lists were given to the court clerk's office, and the names were typed on slips and placed in the jury box. Nothing in the record indicates this method of selecting jurors involves a systematic exclusion of women from jury venires in Maury County.
Moreover, four women sat on the jury that deliberated in this case. While a fifth woman was originally seated on the jury, she was replaced during trial by a male alternate juror. Our supreme court has held that the presence of three women on the petit jury constitutes a "fair representation of women on the jury and that is all that is required by the Constitution of the United States." State v. Strouth, 620 S.W.2d 467, 470 (Tenn. 1981). Accordingly, this issue is without merit. Moreover, by failing to show prejudice, the defendant's claim that counsel was ineffective for failing to raise this issue before trial is also without merit. See Strickland, 466 U.S. at 693, 104 S. Ct. at 2067.
C. Discrimination in the Selection of Grand Jury Forepersons in Giles County
The defendant argues that although African-Americans represent 12% of the Giles County population over the age of 18, no African-American served in the position of foreperson of a Giles County grand jury between 1919 and 1990. The defendant contends that, based on statistical data, there is an absolute disparity of 12%, a comparative disparity of 100%, and a discrepancy of 2.3 standard deviations. Because selection of the grand jury foreperson is by judicial appointment, the defendant contends that the procedure is susceptible to abuse or is not racially neutral. To the extent that trial counsel failed to bring meritorious errors to the trial court's attention, the defendant contends that he is entitled to relief based on ineffective assistance of counsel.
While on appeal the state contends that this issue has been waived, at the hearing on the motion for new trial the state did not present proof or argument on this issue, nor did it accept the trial court's invitation to file a written response. As such, the state is in the position of raising waiver for the first time on appeal, and although this issue was not properly raised before trial, a review of the substantive claim is necessary to determine whether it has merit. Charles Walton Wright v. State, No. 01C01-9105-CR-00149, slip op. at 34.
In State v. Jefferson, 769 S.W.2d 875, 877 (Tenn. Crim. App. 1988), this court held that the issue of whether African-Americans were systematically excluded in the selection of the foreperson is subsumed by the issue of the systematic exclusion of African-Americans in the selection of the grand jury as a whole. In Jefferson, the state presented unrefuted expert testimony at trial concerning the role of the grand jury foreperson in Tennessee. Such proof showed that the grand jury foreperson's role is substantially ministerial and clerical in nature. Id. This court stated that "n Tennessee, the foreman is the spokesperson for the grand jury and has the same voting powers as any other grand jury member. Not only does the foreman not have the power to veto an indictment, his authority, within this context, is no greater than any other member of the grand jury venire." Id. (citations omitted). The court stated that "ith due respect to the dicta of the United States Supreme Court in Hobby [v. United States, 468 U.S. 339, 104 S. Ct. 3093, 82 L.Ed.2d 260 (1984)] suggesting otherwise, the proof adduced at trial supports the State's contention." Jefferson, 769 S.W.2d at 877; cf. Hobby, 468 U.S. 339, 104 S. Ct. 3093 (addressing issue of discrimination in selection of federal grand jury forepersons).
We decline to accept the defendant's argument that the prosecution must present expert testimony in each individual case to show that the role of grand jury foreperson is a ministerial position. Instead, we follow the holding in Jefferson. This issue has no merit. Consequently, by failing to show prejudice, the appellant's claim that counsel was ineffective for failing to raise this issue before trial is also without merit. See Strickland, 466 U.S. at 693, 104 S. Ct. at 2067.
Next, the defendant contends that prospective jurors were exposed to extensive pre-trial publicity concerning this case and the Dugger murder. He argues: (1) venue was transferred without objection from Giles to Maury County even though Maury County had been subjected to greater media exposure; (2) the trial court and counsel failed to adequately question jurors concerning their exposure to pre-trial publicity; and (3) the jurors were improperly allowed to separate twice daily during the trial. We find these issues to be meritless.
In order to show that the media exposure in Maury County concerning this case and the Dugger case was substantial, the defendant, upon his motion for new trial, presented the testimony of Dwight Scott, a paralegal and investigator for the Capital Case Resource Center (CCRC) in Nashville. Scott reviewed newspaper articles, radio reports, and television reports in Davidson, Giles, Lawrence, and Maury Counties about this case and the Dugger case. Scott researched the circulation or anticipated audience size in the various counties. His affidavit and copies of newspaper articles and other printed media reports were introduced into evidence in support of the motion for new trial.
Trial counsel testified at the hearing on the motion for new trial that he knew about the publicity he had seen on television and in the local paper, "The Daily Herald," but he did not get copies of all the different newspaper articles to present to the trial court. Nor did trial counsel attempt to conduct a random survey to see if people had heard about the case or ask the court to distribute a questionnaire to prospective jurors in advance.
In an effort to show that jurors were infected by pre-trial publicity concerning the Dugger trial, the defendant presented the affidavits and testimony of three jurors. A fourth juror was not allowed to testify, but his affidavit is included in the record. The first juror testified that she heard testimony during this trial that Gwen Dugger was raped and murdered by the defendant or his brother when she was 13 years old. She also heard during the trial that Dugger was dead when the defendant had sex with her; however, the juror did not remember this being discussed during deliberations. In her affidavit, she stated that "omeone who knew [the victim] brought out about the defendant having sex with the Dugger girl after death."
Another juror testified that although he did not remember making the statement to a CCRC investigator that he had heard testimony during this trial about the defendant having sex with Dugger's dead body and that he had considered it in voting, he was certain the signed statement was his. A final juror testified that during this trial, she heard testimony that Dugger was killed and buried in a dumpster or beside a dumpster in Pulaski. This juror also heard testimony that the defendant had sex with Dugger after she was dead, but she did not remember the jurors discussing it. She had heard or read about the Dugger case before trial.
Pursuant to Tennessee Rule of Criminal Procedure 21(a),
In all criminal prosecutions the venue may be changed upon motion of thedefendant, or upon the court's own motion with the consent of the defendant,if it appears to the court that, due to undue excitement against the defendantin the county where the offense was committed or any other cause, a fair trialprobably could not be had.
In this case, trial counsel requested that venue be changed from Giles County. The trial court granted the motion, and moved the case to Maury County without objection. In addition, the defendant failed to exercise all of his peremptory challenges to potential jurors, and the failure to challenge for cause or failure to use any available peremptory challenge to remove objectionable jurors precludes reliance upon allegations of disqualified jurors on appeal. State v. Irick, 762 S.W.2d 121, 125 (Tenn. 1988), cert. denied, 489 U.S. 1072, 109 S. Ct. 1357 (1989). Accordingly, this issue was waived. Tenn. R. App. P. 36(a).
The defendant contends that trial counsel was ineffective by failing to object to the change of venue to Maury County. Therefore, we consider the merits of the issue in order to determine whether the defendant has shown prejudice as required under the second prong of Strickland. In relation to this issue, the defendant submits that counsel was ineffective by failing to question potential jurors about their exposure to pre-trial publicity, despite individual voir dire. As a result of neither the trial court nor counsel asking the jurors about the details of information they had heard about this case or the Dugger case, the defendant contends that the jurors who sat on this case had actual knowledge of "facts" from the Dugger case that were highly inflammatory and prejudicial and were not admitted into evidence.
In denying relief, the trial court made the following findings:
The Defendant next raises the issue of the jury being contaminated by exposure to extraneous prejudicial information. Specifically Defendant objects that there was not a change of venue from Maury County to another County where the cause for a change of venue did not exist. The Court recalls that this case was moved from Giles County to Maury County as a result of the Court ruling on a Motion for Change of Venue filed by Defendant requesting that the case be moved from Giles County and no further Motion for Change of Venue or objection to the location of the trial was made. Defendant also complains that the jurors were not asked about the nature, extent, or content of the extraneous information to which they were exposed and that the jurors were briefly separated from each other twice a day. The Defendant however, has failed to prove that the jury was contaminated in any way by any extraneous information and the record of the trial will reflect that counsel examined prospective jurors closely in regard to what they had read, seen or heard in regard to this case and all their responses were heard by the Court. The Court finds that the proof fails to show any contamination of the jury in this case and that this issue is without merit and is overruled.
On appeal, the findings of fact made by the trial court after an evidentiary hearing are afforded the weight of a jury verdict. This Court will not set aside the judgment of the trial court unless the evidence in the record preponderates against its findings. State v. Dick, 872 S.W.2d 938, 943 (Tenn. Crim. App. 1993).
As noted by the defendant, the test for reversible error is whether the jurors who actually sat and rendered the verdict were unprejudiced by pre-trial publicity and were otherwise competent. See State v. Garland, 617 S.W.2d 176, 187 (Tenn. Crim. App. 1981). The defendant must demonstrate that the jurors who heard the case were biased or prejudiced because of pre-trial publicity. State v. Stapleton, 638 S.W.2d 850, 856 (Tenn. Crim. App. 1982). Prejudice will not be presumed on the mere showing that there was considerable pre-trial publicity. Dobbert v. Florida, 432 U.S. 282, 303, 97 S. Ct. 2290, 2303 (1977); State v. Kyger, 787 S.W.2d 13, 19 (Tenn. Crim. App. 1989). The fact that there was extensive knowledge in the community of the crimes and of the defendant is not sufficient to render the trial constitutionally unfair. Dobbert, 432 U.S. at 303, 97 S. Ct. at 2303.
Moreover, it is sufficient "if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court." Irvin v. Dowd, 366 U.S. 717, 723, 81 S. Ct. 1639 (1961). "To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard." Id., 81 S. Ct. at 1642-43; see Adams v. State, 563 S.W.2d 804, 807 (Tenn. Crim. App. 1978).
In Irvin v. Dowd, two-thirds of the jurors actually seated had been exposed to a barrage of pretrial publicity right up until the time of trial, had already formed an opinion that the defendant was guilty, and acknowledged familiarity with material facts and circumstances of the case. Irvin, 366 U.S. at 726, 81 S. Ct. at 1645. In addition, even the headlines of one of the local newspapers reported during jury selection that "impartial jurors are hard to find." Id., 366 U.S. at 727, 81 S. Ct. at 1645. Although each of the jurors said that he could be impartial, the United States Supreme Court concluded that "ith his life at stake, it is not requiring too much that petitioner be tried in an atmosphere undisturbed by so huge a wave of public passion and by a jury other than one in which two-thirds of the members admit, before hearing any testimony, to possessing a belief in his guilt." Id. 366 U.S. at 728, 81 S. Ct. at 1645.
Unlike the jury in Irvin v. Dowd, the record in this case reflects that the exposure of the actual jurors to pre-trial publicity ranged from nonexistent to moderate. One juror stated that she did not remember hearing anything about the case. Another stated that she had not heard of the case until the morning of jury selection, when she read in The Tennessean that eleven jurors had been seated in the case. The other ten jurors all indicated that they had heard or read about the case; however, many of them could not remember anything about it. All the jurors told the trial Judge during voir dire that they had formed no opinion as to the defendant's guilt and that they could decide the case on the proof presented at trial.
While neither the trial court nor counsel asked jurors detailed questions about what they had heard or read about these cases, reversible error is not indicated. "uestions about the content of the publicity to which jurors have been exposed might be helpful in assessing whether a juror is impartial." However, such questions are not constitutionally compelled, and the trial court's failure to ask these questions is not reversible error unless it rendered the defendant's trial fundamentally unfair. Mu'Min v. Virginia, 500 U.S. 415, 425-26, 111 S. Ct. 1899, 1905 (1991); see State v. Howell, 868 S.W.2d 238, 247 (Tenn. 1993).
As to the testimony and affidavits of jurors at the hearing on the motion for new trial, Tennessee Rule of Evidence 606(b) prohibits a juror from giving testimony on any matter or statement occurring during the course of the jury's deliberations or on the effect of anything upon a juror's mind or emotion as influencing his or her vote except that a juror may testify on the question of whether any extraneous prejudicial information was improperly brought to the jury's attention, whether any outside influence was improperly brought to bear upon any juror, or whether the jurors agree in advance to be bound by a quotient or gambling verdict without further Discussion.
Regardless of whether the jurors' affidavits and testimony were admissible under Rule 606(b), the defendant's claim that the jurors who sat and rendered the verdict were prejudiced or biased by pre-trial publicity is unsupported. The jurors who testified at the hearing indicated that they heard from the witness stand certain facts concerning the Dugger murder which were apparently inaccurate and which were not testified to in this case. If this information was learned through exposure to pre-trial publicity, each juror swore to disregard any information they had previously heard outside the courtroom. Moreover, at the hearing on the motion for new trial, none of the jurors testified concerning what they had read or heard about this case or the Dugger case before sitting as jurors. Only one of the jurors who testified indicated in his affidavit that he considered these alleged facts from the Dugger case in voting to convict the defendant, and he could not remember signing an affidavit to this effect at the time of the hearing. The other two jurors did not remember any facts from the Dugger case being discussed during deliberations.
Like the trial court, we conclude that the defendant has failed to demonstrate that the jurors who heard the case were biased or prejudiced because of pre-trial publicity, rendering his trial fundamentally unfair. See State v. Stapleton, 638 S.W.2d 850, 856 (Tenn. Crim. App. 1982). Consequently, we find that the defendant has failed to show how he was prejudiced by counsel's failure to seek a change of venue or to question potential jurors more extensively regarding their exposure to pre-trial publicity. See Strickland v. Washington, 466 U.S. at 694, 104 S. Ct. at 2068.
Finally, it appears that the jurors separately drove the two and one-half miles between the court and their motel each day during the proceedings. The defendant did not present any proof that the jurors disobeyed the trial court's order concerning exposure to news accounts of the trial or had contact with the general public during these separations. None of the jurors who testified indicated that the trial court's order was disregarded during the proceedings. While the possibility of an improper separation is increased when jurors are in the absence of a supervising officer, more than a possibility is necessary before the state is required to show that no prejudice occurred. See State v. McClain, 667 S.W.2d 64, 66 (Tenn. 1984) (jurors occupying separate motel rooms does not constitute an improper separation). This issue is without merit.
Accordingly, based on our review of the foregoing issues concerning the jury, we reject the defendant's contention that the cumulative effect of errors in selecting the jury requires the granting of a new trial.
III. DEATH QUALIFICATION OF JURORS
In another issue, the defendant contends that the trial court erred and trial counsel was ineffective by failing to ensure that potential jurors were adequately questioned concerning their attitudes about the death penalty. Thus, the defendant submits that the jurors were unable to carry out their oaths as jurors at the sentencing stage by considering both punishments and by reserving the choice between life and death until after hearing and considering mitigation proof. The state does not address this issue in its brief.
A review of the voir dire proceedings, specifically of those jurors ultimately impaneled in this case, reflects that the only question asked of each was whether they could consider both punishments at the sentencing hearing. During voir dire, the prosecutor asked potential jurors a variation of the following question:
In Tennessee, if the State carries the burden of guilty , beyond a reasonable doubt, to where your mind rests easy, and the jury found the defendant guilty of first degree murder, there are two punishments. And there would be a sentencing hearing. The State would put on aggravating circumstances; the defense would put on mitigating circumstances, and then the jury would decide between life imprisonment and death by electrocution. Could you consider both of those punishments?
Three of the impaneled jurors were asked the question without discussion of mitigating and aggravating circumstances:
In Tennessee, there are two punishments for first degree murder. One is life imprisonment and the other is death by electrocution. In the event we get to that stage of the trial, ...