Petition — Rose v. Mitchell

Supreme Court, U. §

FILED

MAY 27 1978

ee Cae

| MICHAEL RODAK, JR., CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

i. 37-1701

JIM ROSE, WARDEN,

Petitioner,

VS

JAMES E. MITCHELL and

JAMES NICHOLS, JR.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals for the

Sixth Circuit

ROBERT E. KENDRICK

Deputy Attorney General!

MICHAEL £. TERRY

Assistant Attorney General

450 James Robertson Parkway

Nashville, Tennessee 37219

Phone: (615) 741-1376

Of Counsel:

BROOKS McLEMORE

Attorney General

State of Tennessee

LL ET I a I IS STE

St. Louis Law Printing Co., Inc., 812 Olive Street 63101 314-231-4477

ah

SUBJECT INDEX

GE a ose 5s cent ncunseeecusvensectens

Reasons for granting the writ .....................-.

Argument

State prisoners should not be granted federal habeas

corpus relief on a claim questioning the selection

of the non-voting foreman of their grand jury when

their subsequent trial is free of reversible constitu-

tional error, when there has been no demonstration

of actual prejudice and there is no rational basis

to presume prejudice, and when the claim has been

fully and fairly litigated in state court ..........

II

The Sixth Circuit’s decision does not comport with

the clearly erroneous standard and is contrary to

decisions of this court regarding the Equal Protec-

GE is bs coe bh da hes dd coageuesesaces

, 1

Error, if any, was harmless beyond a reasonable doubt

22

Index to Appendix

Memorandum Opinion of the United States Court of Ap-

peals for the Sixth Circuit, Filed January 9, 1978 .... A-1l

Order Denying Motion for Hearing filed by United States

District Court for the Western District of Tennessee,

Western Division, March 23, 1977 ............... A-16

Memorandum and Order filed by the United States District

Court for the Western District of Tennessee, Western

SS, I UL GD occ cecccéesnccucsses A-18

Order for Further Response filed by the United States Dis-

trict Court for the Western District of Tennessee, West-

ern Division, February 17, 1976 ................. A-20

Order Denying Petition for the Writ of Certiorari filed by

the Supreme Court of Tennessee, at Jackson, March 10,

1975

Opinion of the Tennessee Court of Criminal Appeals filed

I od Ceca ce oie avd eee ek a de kiree kt os 4 A-23

TABLE OF AUTHORITIES CITED

Cases

Akins v. Texas, 325 U.S. 398 (1945) .............. 19, 20

Alexander v. Louisiana, 404 U.S. 625 (1972) ...... 19, 20

Bruton v. United States, 398 U.S. 123 (1968) ........ 10, 22

Carter v. Jury Commission, 396 U.S. 320 (1970) ...... 18, 22

Castaneda v. Partida, 430 U.S. 482, 97 S. Ct. 1272

ere ree A ere Se reer 16, 17, 19, 20, 22

inl

Chapman v. California, 386 U.S. 18 (1967) ............ 23

Fay v. Note, 372 US. 39% (1965) ...........225:- 13,14

Francis v. Henderson, 425 U.S. 536 (1976) .......... 17

Harrington v. California, 395 U.S. 250 (1969) ........ 23

Hurtado v. California, 110 U.S. 516 (1884) ............ 19

Kaufman v. United States, 394 U.S. 217 (1969) ........ 17

Preiser v. Rodriguez, 411 U.S. 475 (1973) ............. 13

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) ....14,17

Stone v. Powell, 428 U.S. 465, 96 S. Ct. 3037

SE a etd he Rae S esas Cae Cee as 13, 15, 16, 17, 18, 20

Strauder v. West Virginia, 100 U.S. 303 (1880) ........ 19

Tollett v. Henderson, 411 U.S. 258, 266 (1973) ...... 17

Turner v. Fouche, 396 U.S. 346 (1970) ...... 18, 19, 20, 22

Village of Arlington Heights v. Metropolitan Housing De-

velopment Corp., 429 U.S. 252 (1977) ............ 22

Washington v. Davis, 426 U.S. 229, 96 S. Ct. 2040

Cele Pda ake COE aee OR KASS 66 ee eee 20, 22

Whitus v. Georgia, 385 U.S. 545 (1967) ............ 20

Other Authorities

1B UBC: Geetiom BAS ... cc cvcccccccccrccccees 18

28 U.S.C.: Section 12541) .... 2... cece eee eee ee ees 3

28 U.S.C.: Sectiom 2241 .. 2... ccc cece ewe wee eeces 3

28 U.S.C.: Section 2254 ....... 2... eee eee eee eee: 3, 20

iv

Bator, Finality in Criminal Law and Federal Habeas

Corpus for State Prisoners, 76 Harv. L. Rev. 441, 463-

ST GERD oc ccc cctccdccnncddunes meee 13,14

Developments in the Law—Federal Habeas Corpus, 83

Harv. L. Rev. 1038, 1042-62, 1263-74 (1970) ...... 13

Federal Rules of Civil Procedure, 52(a), 81(a)(2) ........ 20

Oakes, Legal History in the High Court—Habeas Corpus,

64 Mich.L.Rev. 451-68 (1966) .................. 13, 23

Tennessee Code Annotated:

ee 19

EN GPS o6 svc cevcecsaccsueewe io.

pet GD OSOE, GAT ns occ vvcciccccccecuucas 19

PP ee 19

eee eS 18

United States Constitution, Amendment Fourteen ...... 3, 20

» ’ ama

IN THE

COURT OF THE UNITED STATES

JIM ROSE, WARDEN,

Petitioner,

VS.

JAMES £. MITCHELL and

JAMES NICHOLS, JR.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals for the

Sixth Circuit

Petitioner, Jim Rose, Warden, respectfully prays that a Writ

of Certiorari issue to review the judgment and opinion of the

United States Court of Appeals for the Sixth Circuit rendered

in this proceeding on January 9, 1978, wherein the Court of

Appeals reversed the United States District Court and issued

writs of habeas corpus for the respondents, two prisoners in-

carcerated by the State of Tennessee.

OPINIONS BELOW

The memorandum opinion of the United States Court of

Appeals for the Sixth Circuit was rendered on January 9, 1978,

is reported as Mitchell v. Rose, 570 F.2d 129 (6th Cir. 1978),

and is attached hereto as Appendix A.

This case arose as separate petitions for federal habeas corpus

relief in the United States District Court for the Western District

of Tennessee, Western Division. In the district court these cases

were originally styled: Mitchell v. Rose, Warden, Civil C-75-

222, and Nichols v. Rose, Warden, Civil C-75-265. On Feb-

ruary 17, 1976, an order was entered by the district court, dis-

missing most issues raised in the petitions. A copy of this order

is attached hereto as Appendix D. On February 17, 1977,

another order was entered by the district court dismissing the

remaining claims and entering judgment for the state. A copy

of this memorandum and order is attached hereto as Appendix

C. On March 23, 1977 a further order was entered by the dis-

trict court denying a motion for amendment and stating fur-

ther grounds for the court's decision. A copy of this order is

attached hereto as Appendix B. The memorandum decisions

and orders of the district court are not reported.

The opinion of the Tennessee Court of Criminal Appeals, af-

firming the conviction of Mitchell and Nichols, was filed on

June 5, 1974; and a copy is attached hereto as Appendix F. This

opinion is not reported. The Supreme Court of Tennessee denied

certiorari on March 10, 1975. A copy of that court's order is

attached hereto as Appendix E.

GROUNDS ON WHICH JURISDICTION IS INVOKED

The opinion and judgment of the Court of Appeals for the

Sixth Circuit was entered on January 9, 1978. The state’s pe-

a pe

tition to rehear was denied by order of that Court filed on

March 30, 1978. This petition is timely filed within ninety

(90) days of that date. Jurisdiction is invoked pursuant to 28

U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourteenth Amendment to the Constitution of the United

States provides in pertinent part:

No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any state deprive any person of

life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction equal protection

of the laws.

Habeas corpus is codified in Title 28, United States Code,

which provides in pertinent part:

§ 2241. Power to grant writ:

(a) Writs of habeas corpus may be granted by the Supreme

Court, any justice thereof, the district courts and any cir-

cuit judge within their respective jurisdiction . . .

(c) The writ of habeas corpus shall not extend to a prisoner

unless—

(3) He is in custody in violation of the Constitution or laws

or treaties of the United States . . .”

§ 2254. State custody; remedies in Federal courts:

(d) In any proceeding instituted in a Federal court by

an application for a writ of habeas corpus by a person in

—_ =

custody pursuant to the judgment of a State court, a deter-

mination after a hearing on the merits of a factual issue,

made by a State court of competent jurisdiction in a pro-

ceeding to which the applicant for the writ and the State

or an officer or agent thereof were parties, evidenced by a

written finding, written opinion, or other reliable and ade-

quate written indicia, shal] be presumed to be correct, un-

less the applicant shall establish or it shall otherwise appear,

or the respondent shall admit—

(1) that the merits of the factual dispute were not

resolved in the State court hearing;

(2) that the factfinding procedure employed by the

State court was not adequate to afford a full and fair

hearing;

(3) that the material facts were not adequately de-

veloped at the State court hearing;

(4) that the State court lacked jurisdiction of the

subject matter or over the person of the applicant in

the State court proceeding;

(5S) that the applicant was an indigent and the

State court, in deprivation of his constitutional right,

failed to appoint counsel to represent him in the State

court proceeding;

(6) that the applicant did not receive a full, fair,

and adequate hearing in the State court proceeding; or

(7) that the applicant was otherwise denied due

process of law in the State court proceeding;

(8) or unless that part of the vecord of the State

court proceeding in which the determination of such

factual issue was made, pertinent to a determination

of the sufficiency of the evidence to support such

factual determination, is produced as provided for

a ae

— a

hereinafter, and the Federal court on a consideration

of such part of the record as a whole concludes that

such factual determination is not fairly supported by

the record:

Tennessee Code Annotated provides in pertinent part as

follows:

40-1506. Appointment and term of foreman or fore-

woman.—Judges having criminal jurisdiction in any

county, are authorized, and required to appoint the fore-

men or forewomen of the grand juries in the counties of

their respective jurisdictions; and said foremen or fore-

women shall hold office and exercise their powers for a

term of two (2) years from appointment, unless for good

cause, in the discretion of the presiding judge, he may be

removed, relieved, or excused from office at any time.

Said foreman or forewoman shall be the thirteenth mem-

ber of each grand jury organized during his term of office,

having equal power and authority in all matters coming

before the grand jury with the other members thereof.

[Acts 1919, ch. 37, § 1: Shan. Supp., § 5832a1; mod.

Code 1932, § 10026; Acts 1976 (Adj. S.), ch. 383, § 1.)

Amendments. The 1976 amendment inserted the words “or

forewomen” each place they appear and in the last sentence inserted

“or forewoman.”

40-1507. Qualifications of foreman or forewoman.—

Every person appointed as a foreman or forewoman of

the grand jury under § 40-1506 shall be at least twenty-

five (25) years of age, and shall be a good and lawful man

or woman, possessing all the qualifications of a juror.

Provided that no justice of th¢ peace shall be eligible for

appointment as foreman or forewoman of the grand jury.

the provision of this section requiring that no justice of

the peace shall be eligible for appointment as foreman or

forewoman of the grand jury shall not apply in those

=

counties where arraignment in criminal cases is had ex-

clusively before general sessions court. [Acts 1919, ch.

37, § 2; Shan. Supp., § 5832a2; Code 1932, § 10027;

Acts 1957, ch. 252, §§ 1, 2; 1976 (Adj. S.), ch. 383, § 2.]

40-1510. Duties of foremen or forewomen.—lIt shall

be the duty of such foremen or forewomen of grand juries

to assist and cooperate with the district attorney in ferret-

ing out crime, to the end that the laws may be faithfully

enforced, and such foremen or forewomen are directed

out of term to advise the district attorney with respect to

law violations and furnish him names of witnesses, whom

the district attorney may, if he deem proper, order sum-

moned to go before the grand jury at the next term. In

term time, the foreman or forewoman may order the

issuance of subpoenas for witnesses to go before the grand

jury, unless otherwise ordered by the district attorney.

[Acts 1919, ch. 37, § 4; Shan. Supp., § 5832a4; Code

1932, § 10029; Acts 1976 (Adj. S.), ch. 383, § 5.]

40-1706. Concurrence in true bill —An indictment can-

not be found without the concurrence of at least twelve

(12) grand jurors, and, when so found, shall be indorsed

“A true bill,” and the indorsement signed by the foreman.

{Code 1858, § 5093; Shan., § 7055; Code 1932, § 11600.]

QUESTIONS PRESENTED

1. Whether Discrimination in the Selection of the Non-Vot-

ing Foreman of the Grand Jury Is a Basis Upon Which a State

Prisoner May Be Granted Federal Habeas Corpus Relief When

the Subsequent Trial Is Free of Reversible Constitutional Er-

ror, Ven There Has Been No Demonstration of Actual Preju-

dice and There Is No Rational Basis to Presume Prejudice,

and When the State Has Provided an Opportunity for Full

and Fair Litigation of the Claim?

—

2. Whether the Decision of the Court of Appeals Com-

ports With the Clearly Erroneous Standard and With This

Court's Decisions Interpreting the Equal Protection Clause?

3. Whether, Assuming Arguendo, Systematic Exclusion of

Blacks From the Post of Grand Jury Foreman in Tipton

County, the Doctrine of Harmless Error Can Be Applied,

When There Has Been No Actual Prejudice and No Rational

Basis Exists Upon Which to Presume Prejudice? /

STATEMENT OF THE CASE!

On October 28, 1972 Claudie Greer and William Nabors

were murdered by the respondents during an armed robbery

of a cafe? in Tipton County, Tennessee. The respondent Nich-

ols began the criminal episode by pistol-whipping a customer.

Then Nichols, wielding two pistols, forced the proprietor to

hand over about five or six hundred dollars. Nichols also took

other money from the proprietor and customers in the cafe.

Then, for no apparent reason, Nichols fired several shots into

the back room of the cafe and fled. Eyewitnesses testified that

Claudie Greer, standing in the back room, fell and subsequently

died after the shots were fired from the front room. Proof

later showed that Greer was killed by a shot from a .38 cali-

ber pistol.

1 Unless otherwise indicated, the references contained within this

statement are to pages of the state court record. The state court rec-

ord was before both the federal courts below.

* The race of the defendants, the victims, or the eye-witnesses was,

of course, not an issue at trial. However, since the Court of Appeals

has found racial discrimination and presumed prejudice, the race of

these people is perhaps relevant here to demonstrate the total ab-

sence of prejudice and the lack of any evidence showing discrimina-

tory intent. The only evidence of race appears in Volume II, page 87

of the trial where on redirect examination the cafe’s proprietor testi-

fied he is black and black customers comprised almost 100 per cent

of his business. There is nothing in the record to support any con-

clusion except that the victims and witnesses were also black.

Simultaneously, the co-respondent James Mitchell, armed with

a sawed-off shot gun, was in the process of robbing persons in

the back room. William Nabors was among these people. When

Nabors bent over to pick up some change from the floor, Mitchell

shot him through the mouth with the sawed-off shot gun, ending

his life. Mitchell then went into the front room, took more

money from the proprietress and also fled.

The next day Mitchell and Nichols were arrested together in

Memphis in the apartment of Nichols’ girlfriend. A .38 caliber

pistol was recovered from Nichols at the time of his arrest, and

a ring taken during the robbery was found at the scene of arrest.

A sawed-off shot gun and blood splattered clothing were then

found in the apartment of Mitchell's girlfriend. After his arrest,

Mitchell gave a confession to members uf the Memphis Police

Department.

Nichols and Mitchell were jointly indicted in two indictments

on November 6, 1972. The grand jury was composed of twelve

jurors, one of them was a black woman, and one acting fore-

man. The regular foreman of the grand jury was unavailable

and the trial judge chose a former foreman as his substitute.

The former foreman was chosen to serve by the trial judge be-

cause he had previously served as a regular foreman, had pre-

viously served as an acting foreman, had been willing to perform

in the past, and according to the judge's experience had always

served well." Although some twenty (20) witnesses were sched-

uled to testify before the grand jury, the grand jurors unani-

mously voted to indict the respondents after hearing one police

officer testify. The testimony of the officer primarily consisted

of recounting Mitchell's confession. This witness did nct men-

tion the race of the respondents and this fact was not known to

either the acting foreman or the other members of the grand

* See Affidavits submitted by the state trial judge and the acting

foreman. These affidavits formed part of the state’s response in the

U.S. District Court and were also before the Court of Appeals.

= =

jury.‘ The acting foreman did not vote on the indictment be-

cause of the unanimity, but he did sign the indictment, as is

required by Tennessee law. (T.C.A. § 40-1706).

Prior to trial, the petitioners filed a plea in abatement asking

for dismissal of the indictment and alleging the grand jury and

foreman were selected in a constitutionally offensive manner.

(p. 21). On March 13, 1973 an evidentiary hearing was held

in state court. At that hearing, three jury commissioners of

Tipton County, three former foremen of the Tipton County

Grand Jury, the entire grand jury which indicted the petitioners,

and the circuit court clerk of Tipton County all testified. All

witnesses were subject to full examination by counsel for the

respondents. The proof elicited demonstrated the plea in abate-

ment was without merit. There was a total lack of countervailing

evidence. The state court overruled the plea in abatement.

Trial was held on March 21 and March 22 of 1973 in the

Circuit Court of Tipton County. The state introduced the testi-

mony of five eyewitnesses who identified Nichols and five cye-

witnesses who identified Mitchell as the murderers. (pp. 65, 70,

90, 92, 98, 126, 131, 142, 143, 211, 242, 243, 244, 255, 266,

282). In addition, a redacted version of Mitchell's confession

was introduced. Proof showed the recovery of the murder

weapons from the respondents and showed that a ring stolen

during the crime was recovered from the scene of arrest. The

defense proof consisted almost wholly of a testimonial denial

by Nichols of any participation. The jury found both respond-

ents guilty of first degree murder and sentenced them to sixty

years incarceration on each count. (pp. 357-360).

The respondents appealed their convictions first to the Ten-

nessee Court of Criminal Appeals where they made some twelve

assignments of error including assignments attacking the com-

+ See Affidavit of acting foreman and Volume | of the state record,

which contains the testimony on the plea in abatement.

—

position of the grand jury and the selection process for grand

jury foreman. In a unanimous opinion, the Court of Criminal

Appeals affirmed the convictions and found, “the facts here do

not demonstrate a systematic exclusion of Negroes upon racial

grounds”. (See Appendix F) The Supreme Court of Tennessee

denied certiorari. (See Appendix E).

The respondents’ resort to the federal court system began

as separate applications for federal habeas corpus relief in the

United States District Court for the Western District of Ten-

nessee, Western Division. The initial petitions for habeas cor-

pus relief each included some eleven grounds. In the district

court, the cases were consolidated and twice referred to the

magistrate for report. The state filed four separate responses,

the entire state trial transcript, and affidavits from the state

trial judge and the acting foreman of the indicting grand jury.

After reviewing the first state response, the state trial court

record, and the first report on reference, the district judge, on

February 17, 1976, dismissed all claims except the selection

issues and a Bruton issue. (See Appendix D). On these issues,

the district court ordered further response and another refer-

ence to the magistrate. On February 17, 1977, by memoran-

dum and order, the district court found the Bruton violation

to be harmless beyond a reasonable doubt and further found

that the acting foreman was selected for other than racial rea-

sons. The petitions were dismissed. (See Appendix C). A

final order denying a motion to amend judgment was entered

by the district court on March 23, 1977. (See Appendix B).

The respondents appealed to the Court of Appeals for the

Sixth Circuit which reversed the district court on January 9,

1978. (See Appendix A). The Court of Appeals found dis-

crimination in the selection of the grand jury foreman in Tip-

ton County, and set aside the convictions. The state is ordered

to reindict the respondents in sixty ( 60) days or release them.

REASONS FOR GRANTING THE WRIT

The Sixth Circuit Court of Appeals for the Sixth Circuit has

voided two state first degree murder convictions obtained more

than five years ago. The Sixth Circuit's decision is based on a

finding that the non-voting acting foreman of the indicting

grand jury was selected in a discriminatory manner. The Sixth

Circuit has granted federal habeas corpus relief to the respond-

ents despite a record which demonstrates that:

1. The race of the respondents was unknown to either the

acting foreman or other members of the grand jury;

2. the grand jury contained a black woman, who testified

in state court and established the total absence of any racial

consideration:

3. the regular foreman was unavailable and a former fore-

man was picked by the trial judge to replace him selely be-

cause the trial judge knew of his demonstrated ability, his will-

ingness to serve, and his availability:

4. the acting foreman did not vote on the indictment be-

cause of the grand jury's unanimity;

5. although some twenty witnesses were scheduled, the grand

jury unanimously voted for indictment after hearing one wit-

ness;

6. the selection of the grand jury itself is an issue previously

resolved in favor of the state:

7. the subsequent trial was without reversible constitutional

error and the petit jury was not an issue:

8. the evidence against respondents at trial included five eye-

witness identifications for each, a confession, recovery of the

murder weapons from the respondents, and other physical evi-

dence; and

—_

9. the issue of grand jury foreman selection was fully and

fairly litigated in state court.

More simply stated, the Sixth Circuit has granted federal

habeas corpus relief on the basis of perceived error occurring

during the now moot accusatorial stage. The relief has been

granted without a demonstration of prejudice and upon a

record which can not support any reasonable presumption of

prejudice. The relief was granted after three state courts had

denied relief, and the district court had dismissed the petitions

without an evidentiary hearing. The Sixth Circuit's grant of

federal habeas corpus relief is contrary to the recent decisions

of this Court interpreting the substantive scope of the writ.

The issuance of the writ of habeas corpus in this case is con-

trary to the historical and meaningful purposes of the writ. The

record demonstrates with unmistakable clarity that there is no

unconstitutional deprivation of liberty. Furthermore, any in-

cremental remedial benefit to the system is clearly outweighed

by the cost to the system and society. Such benefit is available

through other means, at much less cost. The criminal justice

system suffers when the writ of habeas corpus issues solely as

a remedial device when no real question of possible innocence

exists.

The decision of the Sixth Circuit is a departure from the ac-

ceptable and usually applied clearly erroneous standard, which

controls an appellate court’s review in habeas corpus.

The decision of the Sixth Circuit has cast grave doubt upon

the continued viability of Tennessee's system for selecting grand

jury foremen or forewomen, a system essentially similar to

those used in other states. The Sixth Circuit's rejection of the

pragmatic reasons for the selection of the acting foreman here

imposes a standard which can only be met by a random selection

system or a system of affirmative action. Key man systems must

either remove all discretion or install a conscious affirmative

action policy. The Sixth Circuit has, in effect, held that a prima

—_—

facie case, built on questionable statistics, can not be rebutted

by a plausible, non-racially motivated explanation. This is con-

trary to the decisions of this Cour’ interpreting the Equal Pro-

tection Clause.

The Writ of Certiorari should be granted to enable this Court

to review the substantive scope of federal habeas corpus; to al-

low this Court to remedy the errors relating to the clearly er-

roneous standard and the Equal Protection Clause; and finally,

so that this Court may decide whether the harmless error doc-

trine should apply.

ARGUMENT

State Prisoners Should Not Be Granted Federal Habeas Corpus

Relief on a Claim Questioning the Selection of the Non-Voting

Foreman of Their Grand Jury When Their Subsequent Trial Is

Free of Reversible Constitutional Error, When There Has Been

No Demonstration of Actual Prejudice and There Is No Ra-

tional Basis to Presume Prejudice, and When the Claim Has

Been Fully and Fairly Litigated in State Court.

The Great Writ, habeas corpus ad subjiciendum, has de-

servedly enjoyed a prestigious place in the history of Anglo-

American jurisprudence. Elaborate and scholarly discussions of

the Great Writ and its evolvement can be found in the decisions

of this Court and other legal writings. See Fay v. Noia, 372

U.S. 391, 399-426, 449-463 (1963); Prieser v. Rodriguez, 411

U.S. 475, 484-487 (1973); Stone v. Powell, 428 U.S. 465, 96

S. Ct. 3037, 3042-3046 (1976); “Developments in the Law—

Federal Habeas Corpus,” 83 Harv.L.Rev. 1038, 1042-62, 1263-

74 (1970); Oakes, “Legal History in the High Court—Habeas

Corpus,” 64 Mich.L.Rev. 451-68 (1966); Bator, “Finality in

—

Criminal Law and Federal Habeas Corpus for State Prisoners,”

76 Harv.L.Rev. 441, 463-507 (1963). As Mr. Justice Powell

wrote in Schneckloth v. Bustamonte, 412 U.S. 218, 255-56

(1973):

Much, of course, has transpired since that first Habeas

Corpus Act (citations omitted). The scope of federal

habeas corpus for state prisoners has evolved from a quite

limited inquiry into whether the committing state court had

jurisdiction (citations omitted), to whether the applicant

had been given an adequate opportunity in state court to

raise his constitutional claims (citation omitted); and

finally to actual redetermination in federal court of state

court rulings on a wide variety of constitutional contentions

(citation omitted ).

The noble purpose of the Great Writ was and should remain

to determine whether a violation of a personal constitutional

right has resulted in the deprivation of liberty. See Fay v. Noia,

372 U.S. at 423, 424. However, through the years this noble

purpose has been joined by other purposes as the substantive

scope of the writ was expanded. The expansion has resulted

from the employment of the Great Writ to further society’s inter-

est in preserving the integrity of the judicial system and imple-

menting minimum constitutional standards within the nation’s

criminal justice system. Society's interests have been fostered

by this expansion, but the issue of undeserved or unjust incar-

ceration has become almost secondary. In fact, since this Court’s

decision in Fay v. Noia, federal habeas corpus relief has, in

reality, been a continuation of the state appellate process. So-

ciety’s interests now demand a reconsideration of the applica-

bility of this form of relief to constitutional errors preceding the

trial which have no real relationship to the deprivation of liberty.

The issuance of the writ should again depend primarily on a

relationship between constitutional error and deprivation of

liberty. This case presents a classic situation for this Court to

=—

consider whether moot pre-trial questions which do not affect

the integrity of the trie! ate cmgnizadle om federal habeas corpus.

In the landmark devision of Stone ». Poweil, sepra, (1976),

this Court held “that where the state has provided an opportunity

for fuli aig fair fingarion of « Fourth Amendment claim, the

Constitution does mov feqmise that a state prseier be granted

federal habeas corpus reef wm the ground that evidence ob-

tained in an unconstitutional search or seizure was introduced

at his trial.”* The proposition here put forth is that the rational

of Stone should extend beyond cases involving Fourth Amend-

ment claims and should encompass a case such as the one sub

judice, where a constitutional infirmity® occurs during the ac-

cusatory stage of the criminal process and has been mooted by

the subsequent trial and conviction. This very extension of the

doctrine and philosophy of Stone was expressly recognized by

the district court in the instant case. In the post-decision order

of March 23, 1977, Chief Judge Brown stated:

Since this court made the determination that this conten-

tion be dismissed, our determination is further supported

by the decision of the Supreme Court of the United States

in Stone v. Powell, — U.S. —, 49 L. Ed. 2d 1067 (1976).

As we read that decision, where the claim of constitu-

tional error does not go to the integrity of the fact finding

process so far as the conviction is concerned, if the peti-

tioner received a full and fair hearing in state court as

to his claim, the federal court will not review the determ)-

nation by the state court. Thus, not only have we found

the decision in the state court to be correct, but also it

> Stone, 96 S. Ct. at 3045, 3046.

“ This characterization is solely for the purpose of presenting this

portion of the petition. No concession of error in the selection

process is i

=

appears that, since the contention was fairly heard in state

court petitioners are not entitled to another review here.

(See Appendix B-2).

In Castaneda v. Partida, 430 U.S. 482 (1977), Mr. Justice

Powell, in dissent,’ specifically recognized “a strong case may

be made that claims of grand jury discrimination are not cog-

nizable on federal habeas corpus after Stone v. Powell . . .” Mr.

Justice Powell explained in Castaneda that the rationale of Stone

is better applied to a case involving a tainted indictment than

a case involving the admission of tainted evidence. As stated

by Mr. Justice Powell:

Unlike the prisoner in Stone, who could complain that his

conviction rested on evidence tainted by Fourth Amend-

ment violations and could ask for a new trial with that

evidence excluded, the prisoner in this case challenges only

the now moot determination by the grand jury that there

was sufficient cause to proceed to trial. He points to no

flaw in the trial itself. As in Stone, the incremental benefit

of extending habeas corpus as a means of correcting un-

constitutional grand jury selection procedures might be

viewed as Outweighed by the acknowledged costs to other

values vital to a rational system of criminal justice.

See Castaneda, at 1287, footnote 1.

The matter sub judice presents facts more appropriately suited

for an application of the Stone rationale than the facts before

this Court in Castaneda. In Castaneda the composition of the

entire Grand Jury was in question. In this matter, only the

* Mr. Justice Powell's dissent was joined by the Chief Justice and

Mr. Justice Rehnquist. Mr. Justice Stewart, separately dissenting,

stated that he was in substantial agreement with the other dissenting

opinions. Castaneda, at 1287. The issue of extending the rationale

of Stone, was not before the Court in Castaneda. The issue had not

ny | in the lower courts and was not briefed or argued in

this Court.

a Se

selection of the non-voting foreman is in question. Furthermore,

in Castaneda the Mexican-American surname of the defendant

is a fact upon which a presumption of prejudice could rest. In

the instant matter the evidence demonstrates that the race of

respondents was unknown to the grand jury when the indict-

ment was returned.

As indicated in Castaneda, there is no peculiar characteristic

regarding claims of grand jury selection irregularities which

would weigh against an extension of the Stone logic beyond the

Fourth Amendment. This Court has previously stated federal

habeas relief is not automatically available to a state prisoner

who pled guilty and later attacked the grand jury selection

process, Tollett v. Henderson, 411 U.S. 258, 266, 267 (1973).

More recently this Court held a state prisoner was not entitled to

habeas relief on grand jury selection grounds when he failed to

conform with a state requirement that such objections be raised

before trial, absent a showing of both cause and actual preju-

dice. Francis v. Henderson, 425 U.S. 536, 542 (1976). Both

the result and rationale of Stone, Henderson, and Tollett are

inconsistent with the decision of the Sixth Circuit in this case.

The Sixth Circuit has not determined that Tennessee is in-

carcerating two possibly innocent individuals. Any reasonable

man viewing the overwhelming evidence admitted at trial must

conclude that retrial will reach the same result if the state can

resurrect evidence which is now more than fiveand one-half

years old.~ Therefore, if guilt is unquestioned, if the trial is

* This condition js not a small consideration, and is a significant

cost factor. Reconstruction of a trial is never a certainty, especially

after five and a half years. The cost to society in terms of money is

obvious. The cost in other terms is also quite clear. See, Stone, 96

S.Ct. at 3050-52; Schneckloth, at 259 (Powell, J., concurring) and

Kaufman v. United States, 394 U.S. 217, 231 (1969) (Black, J., dis-

senting). Perhaps, the biggest cost is the loss of public confidence in

the system. The system has obviously failed when the cost over-

comes the benefit. The criminal justice system should not be a game

of endurance where guilt or innocence is a secondary consideration.

without reversible flaw, and if there is no basis to reasonably

presume any prejudice to respondents from the perceived error,

then the rationale supporting the writ’s issuance must be re-

medial. The Sixth Circuit's opinion supports this conclusion:

“. . , there is injury to the jury system, to the law as an in-

Stitution, to the community at large, and to the democratic

ideal reflected in the processes of our courts.” (See Appendix

A-7). The result is that a conviction, no matter how overwhelm-

ing, can not withstand a pre-trial procedural constitutional er-

ror unrelated to the fact finding process. This philosophy is

remedial and similar to the rationale which formerly supported

federal habeas relief to state prisoners asserting Fourth Amend-

ment claims. Under the mandate of Stone, the incremental

benefits must be weighed against the substantial societal costs.

In this case the costs clearly outweigh the benefit and alterna-

tive methods exist for obtaining the benefits at less cost.°

The Sixth Circuit’s Decision Does Not Comport With the

Clearly Erroneous Standard and Is Contrary to Decisions of

This Court Regarding the Equal Protection Clause.

Tennessee uses the key man system of jury selection. Three

jury commissioners are appointed by the trial judge in each

county. Following statutory guidelines, these commissioners

compile a jury pool from which both grand and petit juries are

* Turner v. Fouche, 396 U.S. 346 (1970) and Carter v. Jury

Commission, 396 U.S. 320 (1970) were not habeas cases and dem-

onstrate the benefits can be achieved through class action litigation

without much of the cost attendant to habeas corpus proceedings.

Other alternatives also exist including criminal sanctions, 18 U.S.C.

$ 243, and the state remedies which in Tennessee include two levels

of appellate review and the state post-conviction law. Tenn. Code

Ann. § 40-3801, et sequel. Finally, an individual is entitled to seek

= direct review of this Court after a decision of the State Supreme

ourt.

—=— =

randomly drawn. See Tenn. Code Ann. § 22-223-243 and

Tenn. Code Ann. § 40-1501-1505. The grand jury foreman

or forewoman.'® is selected in a different manner. The crim-

inal court judge appoints the foreman for a term of two years.

The foreman may be chosen from the general population, must

be twenty-five years old, and otherwise qualified to serve on

the grand jury. See Tenn. Code Ann. §§ 40-1506, 1507. The

foreman becomes the thirteenth grand juror and is required by

law to sign all true bills. Tenn. Code Ann. § 40-1506, 1706."'

The United States Constitution does not guarantee to a state

defendant the right to a grand jury. Hurtado v. California,

110 U.S. 516 (1884). However, this Court has long held that

a criminal defendant is denied equal protection of the law if,

as a result of purposeful discrimination, members of his own

race are excluded from grand jury service. Strauder v. West

Virginia, 100 U.S. 303, 309 (1880). The early cases involved

absolute exclusion but today the principle is established that

substantial under-representation constitutes a constitutional vio-

lation, if the cause is purposeful discrimination. Castaneda,

97 S.Ct. at 1279; Turner v. Fouche, 396 U.S. 346, 359 (1970).

A criminal defendant, in order to prove an equal protection

violation in the context of grand jury selection, must first estab-

lish that the excluded group is a distinct class, singled out for

different treatment under the laws. Next the defendant must

prove the degree of under-representation. Finally the defendant

must show that the selection procedure is susceptible to abuse.

_ Castaneda, 97 S. Ct. at 1280; Alexander v. Louisiana, 404

U.S. 625, 630, 632.(1972); Akins v. Texas, 325 U.S. 398, 403-

404 (1945). If substantial under-representation is demon-

\© Hereinafter, only the masculine designation will be used. The

statute uses both.

11 Tenn. Code Ann. § 40-1706 requires the concurrence of twelve

jurors to return a true bill. Although the foreman must sign

all true bills, his vote is not necessary to indict.

= =

strated and the other requirements shown, then a prima facie

case is made and the burden shifts to the state to rebut the case.

Castaneda, 97 S. Ct. at 1279; Alexander, 405 U.S. at 632; See

also, Whitus v. Georgia, 385 U.S. 545 (1967).

The method of proving an equal protection violation in the

context of grand jury selection is sometimes called the “rule

of exclusion.” This method of proof may give rise to a presump-

tion of unconstitutional action which will prevail if unrebutted.

Washington v. Davis, 426 U.S. 229, 241 (1976). However,

the essential element of inviduous discriminatory purpose is still

required. “The central purpose of the Equal Protection Clause

of the Fourteenth Amendment is the prevention of official con-

duct discriminating on the basis of race.” Washington, 426 U.S.

at 239. A prima facie case fails when the presumption is dis-

pelled by plausible evidence demonstrating the official action

was not racially motivated. Castaneda, 97 S. Ct. at 1282; Tur-

ner, 396 US. at 361.

There can be no doubt that a Court of Appeals may set aside

a district court's findings in a habeas action only if they are

clearly erroneous. Fed. Rule Civ. Proc. 52(a), 81(a)(2);

Castaneda v. Partida, 430 U.S. 482, 97 S. Ct. 1272, 1286

(1977) (Stewart, J. dissenting). The district court below dis-

missed the foreman selection issue, finding “that the foreman

was selected for other than racial reasons. . . .” (Appendix

C-2) and “that this issue had been adequately investigated by

the state trial judge and his determination that there had been

no racial discrimination was correct.” (Appendix B-2).!? These

findings can not be said to be clearly erroneous.

Certainly, black people are a distinct class satisfying the

first element of proof. Further, the Tennessee system, which

12 The district judge also based his decision on Stone v. Powell,

og U.S. mend ey” as is discussed above. Although not cited in

is memoranda, istrict judge’s decision is also a correct ica-

tion of 28 U.S.C. 2254(d). af —

=

allows the criminal judge to exercise his discretion in selecting

a foreman, could be used to discriminate. Therefore, in order

to make a prima facie case the respondents were required only

to demonstrate substantial under-representation over a sig-

nificant period of time. The proof on this element is very ques-

tionable!* but was sufficient for the district judge to find a prima

facie case. The state responded with two affidavits, from the

acting foreman and the trial judge. These affidavits demon-

strate with frankness and clarity the solely pragmatic reasons

why the foreman was selected. Simply stated, the regular fore-

man was unavailable so the judge chose a former foreman be-

cause of his availability, his willingness, his experience, and his

demonstrated ability. The reasons for selection are very credible

and demonstrate a responsible and natural course of human ac-

tion which is wholly void of racial consideration. The district

court so found and this finding can not be said to be clearly

erroneous.

The decision of the Sixth Circuit is contrary to a long, un-

broken line of decisions by this Court requiring proof of in-

18 The opinion of the Sixth Circuit is very misleading on a number

of points relating to the evidence adduced by respondents, the rebut-

tal evidence, and the procedure below:

(a) First, there was no hearing of any kind in district court in

this case. All references in the opinion to a “hearing” are to the

hearing in state court on the plea in abatement. The transcript of this

hearing was before the federal courts.

(b) Second, the opinion states “There has never been a black

foreman or forewoman in Tipton County according to the recollec-

tions of the trial judge, three jury commissioners, and three former

foremen”. (See Appendix A-5, A-6). In fact, the record shows that

the three jury commissioners never testified on this issue whatsoever,

and the trial judge's affidavit does speak to his recollection but only

to the present. (See, state record, Vol. 1, pp. 55-71). Therefore, the

total evidence of substantial underrepresentation is drawn from the

testimony of three foremen. One had only served for two years in

the early seventies. One served “5 or 6 years” in the early sixties.

The third served “several years” in the fifties. Two of them had also

substituted. These recollections form the whole proof of under-

representation. (See, state record, Vol. I, pp. 71-82).

—

tentional discrimination to sustain an equal protection claim.

See Castaneda, 97 S. Ct. at 1279; Washington, 426 U.S. at

239; Village of Arlington Heights v. Metropolitan Housing

Development Corporation, 429 U.S. 252 (1977); Turner, 396

U.S. at 361; and Carter v. Jury Commissioners, 396 U.S. at

339. Analogous to the facts in Carter, the proof here only

shows that the post of foreman has not been held by a black

according to the recollection of three foremen. Unlike Carter,

the facts here also show a plausible, credible, non-racially

motivated reason for the selection in issue. This reason is dif-

ferent from the general, self-serving explanations rejected by

this Court in Turner. The reason here is pragmatic and sup-

ported by facts admitted by both sides. The rejection of this

reason establishes a standard which can only be met by ran-

dom selection or historical proportional representation. This

is contrary to the decisions of this Court. See especially, Carter,

396 U.S. at 339.

Il

Error, if Any, Was Harmless Beyond a Reasonable Doubt

Assuming, without conceding, error in the selection of the

acting foreman and that the issue is cognizable on federal

habeas corpus, the error was harmless beyond a reasonable

doubt. Harrington v. California, 395 U.S. 250 (1969); Chap-

man v. California, 386 U.S. 18 (1967).

The perceived error involves the selection of the acting fore-

man. The foreman did not vote for indictment, and his only

involvement was to call one witness, swear in the witness, ask

the grand jury if they were ready to vote, and sign the indict-

ment. If error, this is a now moot procedural error which had

no effect on the integrity of the trial. Ironically, a Bruton'*

'* Bruton v. United States, 391 U.S. 123 (1968).

—

type error in this case has been declared harmless by all re-

viewing courts. Bruton errors certainly have the potential of

affecting the reliability of the fact finding process. The fore-

man selection error, if any, has no such potential.

CONCLUSION

“Our goals are truth and justice, and procedures are but

means to these ends. Truth and justice are ultimate values, so

understood by our people, and the law and the legal profession

will not be worthy of public respect and loyalty if we allow

our attention to be diverted from these goals.” Oaks, “Ethics,

Morality, and Professional Responsibility,” 3 B.Y.U.L. Rev.

591, 596 (1975). For these values, and for the other reasons

explained in this petition we respectfully pray that a writ of

certiorari issue.

BROOKS McLEMORE

Attorney General

ROBERT E. KENDRICK

Deputy Attorney General

MICHAEL E. TERRY

Assistant Attorney General

450 James Robertson Parkway

Nashville, Tennessee 37219

Attorneys for Petitioner

APPENDIX

— * =

APPENDIX A

No. 77-1272

United States Court of Appeals

for the Sixth Circuit

James E. Mitchell and James Nichols, .

Jr., Appeal from the

Petitioners-Appellants, | United States District

v. . Court for the West-

ern District of Ten-

Jim Rose, Warden, nessee.

Respondent-Appellee. |

Decided and Filed January 9, 1978

Before: Phillips, Chief Judge, Peck, Circuit Judge, and Gray,

Senior District Judge.*

Peck, Circuit Judge. On November 6, 1972, Petitioners

James Mitchell and James Nichols, Jr., were indicted for two

counts of first degree murder by the Tipton County, Tennessee

grand jury. On March 22, 1973, they were found guilty after a

jury trial.

Prior to the trial, petitioners filed a pro se motion, asking the

trial court to dismiss the indictment because the grand jury and

the foreman of the grand jury which indicted them had been

selected in a racially discriminatory manner. A pretrial hearing

was held and the trial judge, making no written or oral findings

* Honorable Frank Gray, Jr., United States District Court for the

Middle District of Tennessee, sitting by designation.

— YT

of fact or rulings of law, entered an order which stated in full:

“Plea in abatement is overruled.”

The ruling was upheld in the Tennessee Court of Criminal

Appeals on the grounds that racial discrimination had not

been proved, and certiorari to the Tennessee Supreme Court

was denied. Petitioners then turned to the federal courts for re-

lief, filing pro se petitions for writs of habeas corpus in the

United States Disirict Court for the Western District of Ten-

nessee.

The district judge denied an evidentiary hearing, and ruled

that

the question of racial discrimination in the selection of

the grand jury was adequately investigated and that the

state trial judge, in ruling that no discrimination had been

shown in the selection of the grand jury made the correct

decision on the record before him.

The district judge went on to hold, however, that a prima facie

case had been made with respect to the foreman issue, and

ordered the state to make further response.

The state submitted two affidavits. The foreman of the grand

jury which indicted the petitioners stated that he had not voted

on the indictments, and that petitioners were indicted after the

grand jury had heard only one witness. The judge who had

appointed the foreman also submitted an affidavit, stating, “We

called Mr. Smith [the foreman] because he has been willing to

act in the past and has experience and does a good job as such

foreman.” The trial judge’s affidavit continued:

In my five counties, I do not have a black grand jury

foreman, although I have a black member of my Jury

Commission in one county. Most all of my Grand Juries

and Petit Juries have sizeable numbers of blacks on them,

st lll

— <

both men and women. | don’t appoint Grand Jury Fore-

men very often because when their two year term expires,

I usually reappoint them, thus they serve a long time and

the problem doesn’t come up very often. I don’t think that

I have really given any thought to appointing a black fore-

man but I have no feeling against doing so.

On the basis of these affidavits, the district court ordered the

dismissal of the petitions for habeas corpus relief, stating:

[N]o racial discrimination in the composition of the grand

jury has been shown. On the contrary, it appears that one

black person actually served on the grand jury that indicted

these petitioners, that the foreman was selected for other

than racial reasons, and that the foreman did not vote at

the time the indictment was rendered.

The petitioners have appealed that order, contending that

they have made out a prima facie case of discrimination in the

selection both of the grand jury and of the foreman, which the

State of Tennessee has not adequately rebutted. In the alterna-

tive, they argue that they have a right to an evidentiary hearing

in the district court to further develop the facts.

Tennessee uses the “key man™ system of jury selection, re-

lying on three jury commissioners appointed by the trial judge

to select a pool of prospective grand jurors from tc general

population. Tenn. Code Ann. § 22-223. Every two years, the

commissioners meet to select names “from the tax records and

permanent registration records of the county, or other available

and reliable sources,” § 22-228. The number of names are deter-

mined by the judge. The names are recorded officially in a jury

list book, § 22-228(a), then written on cards, sealed in a box,

— ~

and drawn at random as needed for jury service. The same list

serves as jury pool for both grand and petit juries.

The commissioners have a duty to propose a “list of names of

upright and intelligent persons known for their integrity, fair

character and sound judgment.” § 22-228. The basic statutory

qualifications for jury service are that a juror must be at least

eighteen years old, a United States citizen and a resident of the

county in which he or she serves as juror. § 22-201. In addi-

tion, persons convicted of “infamous offenses,” of unsound mind,

with deficient sight or hearing, or habitually drunk are disquali-

fied. Persons in certain exempt occupations or who would suffer

hardship if they served are excused.

The foreman or forewoman of the grand jury is selected in an

entirely different manner. In essence, they are hand-picked by

the trial judge from the eligible population for a two-year ap-

pointment. § 40-1506. They are subject to the same statutory

qualifications as jurors except that they must be at least twenty-

five years old.

The facts elicited at the pretrial hearing were meager,

especially as to hard figures or even substantiated estimates of

the racial makeup of Tipton County grand juries. For instance,

there is no indication in the record of the total number of per-

sons in the jury pool, nor is there any indication of the racial

makeup of the pool. However, some relevant information may

be gleaned from the record.

In 1972, the jury commissioners in Tipton County were three

men, all white. The November, 1972 grand jury was selected

from the jury pool chosen two years earlier. Names were selected

—

from the local telephone directory,' and all three commissioners

testified that they selected names only of persons they knew,

either personally or by reputation, and that they were aware of

their duty to select, without prejudice, black members of the

community.

Very few statistics were mentioned at the hearing, although

one commissioner testified that he thought the county was

about 30% black. (The 1970 Census shows that Tipton County

was 32.4% black.)* Neither the total number of names in the

jury pool, nor the number of blacks was established, though it

is significant that the state could easily have done so. This

would prove beyond a doubt that there was no discrimination,

if such were true, since a jury list book is a statutory requirement,

and since the commissioners are acquainted with everyone on

' Petitioners have challenged the use of the telephone directory

as a source of names for jury service. The use of phone books has

been upheld in the past, Gebhard v. United States, 422 F.2d 281

(9th Cir. 1970), but petitioners, relying on census data, have made

a showing that 44.3 percent of Tipton County black households

are without telephone service while only 20.7 percent of white

households are without such service. The use of voting lists with

such disparities has been upheld, but on the grounds that register-

ing to vote is a voluntary act which is reasonable to require of

jurors. We need not decide whether obtaining telephone service is

a similar voluntary act, but note that the Supreme Court, reversing

a district court's finding of no discrimination, has held that

the court should not have passed without response the com-

missioners’ elimination from consideration for jury service of

about 9% of the population of the entire county. In the face

of the commissioners’ unfamiliarity with Negroes in the com-

munity and the informality of the arrangement by which they

sought to remedy the deficiency in their knowledge upon re-

compiling the jury list, we cannot assume that inquiry would

not have led to the discovery of many qualified Negroes.

Turner v. Fouche, 396 U.S. 346, 360 (1970).

* The courts may take judicial notice of census figures, absent

a showing that they are unreliable for some reason. Goins v. Allgood,

391 F.2d 692 (Sth Cir. 1968): cf., Castaneda v. Partida, 430 U.S.

482. 487-488 (1977).

—_—

the list. However, three prior foremen did testify in vague terms

about the representation of blacks on the juries themselves.

The three of them had served off and on as grand jury fore-

men since the early 1950's. None of them could recall a black

foreman or forewoman. However, each testified that blacks had

served on their grand juries, remembering “several,” “some,”

“probably three or four,” “usually two or three,” and one black

woman on the November, 1972 grand jury that indicted the

petitioners. *

Ill

The fundamental rules to be applied in cases charging grand

jury discrimination are well established. For almost a century

it has been settled law that if a state chooses to use grand

juries to return indictments, the jurors must be selected with-

out discrimination because of race or color. In 1879, in its

landmark trilogy of cases establishing the right of blacks to

serve on juries and grand juries, and the right of every accused

citizen to an indictment by a grand jury selected without dis-

crimination, the Supreme Court pointed out:

It is not easy to comprehend how it can be said that while

every white man is entitled to a trial by a jury . . . se-

lected without discrimination against his color, and a

negro is not, the latter is equally protected by the law

with the former. Is not protection of life and liberty

against race or color prejudice a right, a legal right, un-

der the constitutional amendment? And how can it be

maintained that compelling a colored man to submit to a

trial for his life by a jury drawn from a panel from which

* The state nted no rebuttal except the testimony of the

Circuit Court Clerk, who agreed with the prosecutor's comment that

there had been “a very substantial number of members of the

Negro race” on petit and grand juries.

—_ <

the State has expressly excluded every man of his race,

because of color alone, however well qualified in other

respects, is not a denial to him of equal legal protection?

Strauder v. West Virginia, 100 U.S. 303, 309 (1879). Sub-

stantial underrepresentation, as a result of purposeful discrim-

ination, is as much a constitutional violation as total exclusion.

Castaneda v. Partida, 430 U.S. 482 (1977); Turner v. Fouche,

396 U.S. 346 (1970).

There seems to be a common misconception, exemplified by

the trial judge’s comments at the evidentiary hearing, the dis-

trict court’s opinion dismissing the petition, and respondent's

brief, that constitutional requirements are met if there are sim-

ply “some” blacks on grand juries. This is probably due to fre-

quent judicial statements that there is no requirement for any

particular jury panel to contain blacks, and that the venire

need not contain the names of blacks in the same proportion

as they are to be found in the general population. Both these

Statements are quite true; however, they are true because both

may occur without discrimination against blacks. However

large a percentage of the jury. pool are black, any single jury,

randomly drawn, may be all white (or, for that matter, all

black). Also, neutral legitimate requirements imposed by the

State On its jurors may weigh more heavily on one race than

another, resulting in percentages different from those in the

general population. Whether the presence of a few blacks on

grand juries over the years is evidence tending to prove or dis-

prove racial discrimination depends on the proportions of blacks

who are qualified for jury service.

The method of establishing a prima facie case of intentional

discrimination is also well-established when, as here, the al-

leged discrimination is aimed at blacks. If over a significant

period of time there exists a substantial disparity between the

proportion of blacks in the general population, and the pro-

a ee

portion called to serve as grand jurors,‘ and the selection pro-

cedure affords an opportunity to discriminate or is not racially

neutral,” then the defendant has made out a prima facie case,

and the burden shifts to the state to rebut the case. Castaneda,

supra, 430 U.S. 482; Alexander v. Louisiana, 405 U.S. 625

(1972).

Once the burden has shifted to the state, it may rebut the

prima facie case in several ways. The state may impose any

reasonable qualifications it wishes on its grand jurors; for in-

stance, it may require that they be literate, that they not be

convicted felons, or that they be registered voters. The neutral

imposition of any of these requirements may possibly result

in the exclusion of more members of one race than another.

“There are many possible circumstances which, if they exist

4 In most reported cases thus far, this statistical analysis has

been largely intuitive, based on rough impressions about probabili-

ties. However, given accurate data, the probability that racial re-

sults are due to chance can be analyzed mathematically and either

affirmed or rebutted with considerable accuracy. For instance, in

Castaneda, supra, 430 U.S. 482, with a 79.1% Mexican-American

population and 39% Mexican-American grand jurors over a period

of eleven years, the Supreme Court could determine that the chances

of such a result occurring without racial discrimination were less

than one in ten to the | power and thus could be described as

impossible. See Finkelstein, The Application of Statistical Decision

Theory to the Jury Discrimination Cases, 80 Harv. L. Rev. 338

(1966). Statisticians generally reject the possibility that a particular

result is due to chance when the probability of that result occurring

by chance is less than one in twenty. /d. at 359. We need not decide

today at what point the courts should similarly reject an assertion

that a particular racial result is due to chance rather than discrimina-

tion.

* While the facial constitutionality of the key-man system has

been upheld, it has been frequently recognized as a method par-

ticularly subject to abuse, and therefore subject to close scrutiny

by the courts. We note, as has the Supreme Court on numerous

occasions, that random selection methods similar to the federal

system would avoid most of the potential for abuse found in the

key man system, and would probably eliminate challenges such as the

_— of Tennessee faces here. Castaneda, supra, 430 U.S. at 497

n. 18.

—

here, might account lawfully for the observed disparity. The

suggestion of their possible existence is not enough, however.”

Stephens v. Cox, 449 F.2d 657 (4th Cir. 1971). The state

must present some concrete evidence of the effect of its neu-

tral requirements, not merely present to the court unfounded

suppositions about the literacy, intelligence and good charac-

ter of its black citizens.“ Finally, it should be noted that self-

serving protestations from the officials involved that racial con-

siderations played no part in the selection are not enough to

rebut a prima facie case. Castaneda, supra, 430 U.S. at 498

n. 19; Alexander v. Louisiana, supra, 405 U.S. at 632.

IV

Applying these principles to the grand jury selection in this

case is difficult because of the vague nature of the data avail-

able. Accepting as true the testimony of the grand jury fore-

men at the pretrial hearing, over the last quarter-century there

has been at least one grand jury which was less than 8 percent

(one in thirteen) and one which was nearly 31 percent black

(four in thirteen). These figures do not help us, however, be-

cause there is no way to tell from the record what average

percentage of all the grand juries over those years was black,

the only statistic which would help to prove or disprove the

existence of discrimination.

We need neither depend on questionable estimates nor re-

mand for a time-consuming hearing,’ however, because there

“ See Turner v. Fouche, 396 U.S. 346 (1970), in which the Su-

preme Court rejected the state’s attempt to explain the disparity in

black representation on juries by arguing, without substantiation, that

many blacks were not “upright” or “intelligent” enough to serve.

* In Townsend v. Sain, 372 U.S. 293 (1963), the Supreme Court

held that an evidentiary hearing must be held on an application for

federal habeas corpus relief “unless the state-court tner of facts

has after a full hearing reliably found the relevant facts.” /d.,

at 313.

— A-10 —

is no guesswork about the figures in the second aspect of pe-

titioners’ case. There has never been a black foreman or fore-

woman of a grand jury in Tipton County according to the

recollections of the trial judge, three jury commissioners, and

three former foremen. The statutory qualifications are iden-

tical to those of jurors except that foremen or forewomen must

be a few years older. The position is filled by the trial judge

from the general population, thus affording ample opportunity

for discrimination, whether conscious or unconscious. While

discrimination must be “intended,” officials who select grand

jurors must be considered to have intended the natural results

which flow from their conduct. Rabinowitz v. United States,

366 F.2d 34 (Sth Cir. 1966). Thus a judge who “never really

gave any thought” to appointing a black is discriminating just

as surely as were the jury commissioners who never selected

blacks because their names were “never discussed,” Norris v.

Alabama, 294 U.S. 587 (1935), or because they didn’t know

any blacks, Turner v. Fouche, 396 U.S. 346 (1970). Officials

who select grand jurors have a duty to learn who is qualified

to fill the position of grand juror, and to consider qualified

individuals from all segments of society. Failure to perform

that duty, resulting in the exclusion of a qualified segment of

society, is unconstitutional discrimination. Turner, supra, 396

U.S. 346.

Thus the petitioners clearly established a prima facie case

of racial discrimination in the appointment of grand jury fore-

men and forewomen. The state presented no rebuttal to this

case at the hearing, but in response to the district court’s re-

quest for a further answer to this prima facie case, submitted

the two affidavits described above. In dismissing the petitions,

the district judge stated that the foreman was “selected for

other than racial reasons, and . . . did not vote at the time

the indictment was rendered.” Thus we must decide whether,

as the district court ruled, the state has successfully rebutted

the prima facie case.

ee Ce

— A-ll —

Perhaps understandably, it appears that the district court

has given undue weight to the exculpatory affidavit of the trial

judge. In Alexander v. Louisiana, supra, 405 U.S. 625, the

Supreme Court pointed out that

the clerk of the court, who was also a member of the jury

commission, testified that no consideration was given to

race during the seiection procedure. App. 34. The Court

has squarely held, however, that affirmations of good

faith in making individual selections are insufficient to

dispel a prima facie case of systematic exclusion. Turner

v. Fouche, supra, at 361: Jones v. Georgia, 389 US.

404. 407 (1967). “The result bespeaks discrimination,

whether or not it was a conscious decision on the part of

any individual jury commissioner.” Hernandez v. Texas,

347 US., at 482. . . . The commissioners, in any event,

had a duty “not to pursue a course of conduct in the ad-

ministration of their office which would operate to dis-

criminate in the selection of jurors on racial grounds.”

Hill v. Texas, 316 U.S. 400, 404 (1942).

An absence of blacks qualified to serve as foremen or fore-

women has not been demonstrated or even sugyested; thus

there has been no rebuttal of petitioners’ prima facie case.

The fact that the foreman did not vote on petitioners’ in-

dictments also fails to support the district court’s dismissal.

Consideration of this factor is closely linked to the final,

implicit question in this appeal: whether proof of discrimina-

tion in the selection of a grand jury foreman mandates the same

remedy as does proof of discrimination in the selection of the

grand jury. Normally, if the state fails to successfully rebut

a prima facie case of discrimination, a writ of habeas corpus

must issue, since the indictment and all proceedings on that

indictment are void. See Castaneda, 430 U.S. 482. There is

no need for the petitioner to show prejudice, and a showing of

no prejudice by the state is no defense. Hill v. Texas, 316 U.S.

400 (1942).

— A-12 —

The question is whether the same result is required when

there is discrimination shown only in the selection of the grand

jury foreman. While the parties did not brief this issue, if ‘s

necessary that we consider it since the district court apparently

relied on a finding of no prejudice, pointing out that the foreman

rendered no vote on the indictment.

In 1973, this Court held on facts similar to those here that

no discrimination had been proved because the particular fore-

man in question had not been appointed in the usual fashion,

but selected in an emergency from among the grand jurors.

There was no challenge to the makeup of the grand jury panel.

Thus the defendant could not rely on proof of past absence of

blacks from the foreman position, along with a selection process

susceptible to abuse, because the foreman in this case had not

been selected in the same manner. Hale v. Henderson, 485 F.2d

266 (6th Cir 1973), cert. denied, 415 U.S. 930 (1974). Not

inconsistent with that opinion, we hold today that where a prima

facie case of discrimination in the selection of grand jury fore-

men has been established, and has not been rebutted, “the con-

viction cannot stand, because the Constitution prohibits the

procedure by which it was obtained.” Hill v. Texas, supra, 316

U.S. at 406.

The foreman or forewoman is vitally important to the func-

tioning of grand juries in Tennessee, being “the thirteenth mem-

ber of each grand jury organized during his term of office, hav-

ing equal power and authority in all matters coming before the

grand jury with the other members thereof.” Tenn. Code Ann.

§ 40-1506. He or she is expected to assist the district attorney

in investigating crime, may administer oaths to all witnesses,

conduct the questioning of witnesses, must indorse and sign all

indictments,* and like every other chairperson is in a position to

* See Tenn. Code Ann.,

§40-1510. Duties of foremen or forewomen.—It shall be the

duty of such foremen or forewomen of grand juries to assist

— A-13 —

guide, whether properly or improperly, the decision making

process of the body. Additionally, the indorsement and signa-

ture of the foreman or forewoman is indispensible to an indict-

ment in Tennessee, and their absence voids the bill. Bird v.

State, 103 Tenn. 343, 52 S.W. 1076 (1876).

In any case, even without these important duties and powers,

the foreman or forewoman is a full member of the grand jury,

and we agree with the district court in Hale v. Henderson, 336

F. Supp. 512 (W.D. Tenn. 1972), that a grand jury which is

only twelve-thirteenths constitutional cannot render constitu-

tionally valid indictments.

It seems clear that the potential for prejudice, given the posi-

tion of authority and influence the foreman or forewoman holds,

is considerable, and in such cases where the fact of prejudice

may be impossible to prove, yet its effect could be so insidious

and far-reaching, the courts have refused to require proof of

district attorney with respect to law violations and furnish him

names of witnesses, whom the district attorney may, if he deem

proper, order summoned to go before the grand jury at the

next term. In term time, the foreman or forewoman may or-

der the issuance of subpoena for witnesses to go before the

grand jury, unless otherwise ordered by the district attorney.

$40-1622. Power of foreman to administer oath.—The foreman

of the grand jury shall have power to administer oaths to all

witnesses brought before the grand jury to testify as to the

violations of the criminal laws in all cases where the clerks

of the criminal and circuit courts may administer said oath.

$40-1706. Concurrence in true bill_—An indictment cannot be

found without the concurrence of at least twelve (12) grand

jurors, and, when so found, shall be indorsed “A true bill”.

and the indorsement signed by the foreman.

$40-1709. Presentation of indictment.—An indictment, when

found by the grand jury, and indorsed as prescribed by this

chapter, shall be presented by the foreman. in their presence. to

the court. and filed by the clerk.

— A-14—

However, it is not simply the possibility of prejudice to a

criminal defendant that mandates the reversal of convictions

based on unconstitutional indictments. In fact, it is quite clear

that a constitutional indictment may be returned by an all-

white or an all-black grand jury, and the possibility of prejudice

is no less if such a jury makeup occurred by chance rather than

by design. Even a white defendant has standing to challenge a

grand jury selection process which systematically excludes

blacks. Peters v. Kiff, 407 U.S. 493 (1972). Many years ago

it was recognized that the injury is more subtle, and runs deeper

than direct racial prejudice against the defendant:

[R]eversible error does not depend on a showing of preju-

dice in an individual case. The evil lies in the admitted

exclusion of an eligible class or group in the community

in disregard of the prescribed standards of jury selection.

. . The injury is not limited to the defendant—there is

injury to the jury system, to the law as an institution, to

the community at large, and to the democratic ideal re-

flected in the processes of our courts.

Ballard v. United States, 329 U.S. 187, 195 (1946).

In Peters v. Kiff, supra, 407 U.S. 493, the state opposed the

issuance of the writ to a white prisoner, arguing that

even if the grand and petit juries were unconstitutionally

selected, petitioner is not entitled to relief on that account

because he has not shown how he was harmed by the error.

It is argued that a Negro defendant's right to challenge the

eee from jury service rests on a presump-

_—"“Tion that a jury so constituted will be prejudiced against

him; that no such presumption is available to a white de-

fendant; and consequently that a white defendant must

introduce affirmative evidence of actual harm in order to

establish a basis for relief.

— A-15 —-

Id. at 498. The Supreme Court expressly rejected this argu-

ment, holding that such discrimination by its very existence de-

nies a defendant due process of law:

[A] State cannot, consistent with due process, subject a

defendant to indictment or trial by a jury that has been

selected in an arbitrary and discriminatory manner, in

violation of the Constitution and laws of the United

States. Illegal and unconstitutional jury selection proce-

dures cast doubt cn the integrity of the whole judicial

process.

The necessary remedy in such a case is also clear:

[NJo State is at liberty to impose upon one charged with

crime a discrimination in its trial procedure which the Con-

stitution, and an Act of Congress passed pursuant to the

Constitution, alike forbid. . . . [I]t is our duty as well as

the State’s to see to it that throughout the procedure for

bringing him to justice he shall enjoy the protection which

the Constitution guarantees. Where, as in this case, timely

objection has laid bare a discrimination in the selection of

grand jurors, the conviction cannot stand, because the Con-

stitution prohibits the procedure by which it was obtained.

Hill v. Texas, 316 U.S. 400, 406 (1942).

It is therefore ordered that the cause be remanded to the

district court for entry of an order providing that petitioners’

convictions be set aside, and that within sixty days the peti-

tioners be reindicted, failing which the writ of habeas corpus

shall be made absolute and petitioners released from custody.

— A-16 —

APPENDIX B

In the United States District Court for the

Western District of Tennessee

Western Division

James E. Mitchell,

Petitioner

v. Civil C-75-222

Jim Rose, Warden,

Respondent

and

James Nichols, Jr.,

Petitioner

v. Civil C-75-265

Jim Rose, Warden,

Respondent

ORDER DENYING MOTION FOR HEARING, ETC.

(Filed March 23, 1977)

Following our memorandum and order of February 17,

1977, in which we directed that a final judgment be entered for

the respondent, an earnest motion for hearing and/or amend-

ment of judgment and/or reconsideration has been filed in be-

half of petitioners by the University of Tennessee Legal Clinic.

In this motion, supported by memorandum, it is contended that

petitioners have made a prima facie case with respect to dis-

crimination in the selection of the trial jury and, further, that

petitioners have made a case of discrimination in the selection

of the grand jury foreman.

With respect to the first contention, that is, the contention

having to do with discrimination in the selection of the trial

jury, it appears to the court that the instant motion raises this

—.

issue for the first time, and, as we read the assignments of error

in the direct appeal of these convictions, there was no conten-

tion that such discrimination occurred with respect to the selec-

tion of the trial jury. Since the assignments of error on the

direct appeal are the only basis for a showing of exhaustion

of state remedies here, it is the opinion of the court that peti-

tioners have not exhausted state remedies insofar as they con-

tend that there was racial discrimination in the selection of the

trial jury.

With respect to the other contention in the instant motion

having to do with selection of the foreman of the grand jury,

this court entered an order on February 17, 1976 dismissing

the contention on the ground that this issue had been ade-

quately investigated by the state trial judge and that his deter-

mination that there had been no racial discrimination was

correct. Since this court made the determination that this conten-

tion should be dismissed, our determination is further supported

by the decision of the Supreme Court of the United States in

Stone v. Powell, — U.S. —, 49 L.Ed. 2d 1967 (1976). As we

read that decision, where the claim of constitutional error does

not go to the integrity of the fact-finding process so far as the

conviction is concerned, if petitioner received a full and fair

hearing in state court as to his claim, the federal court will not

review the determination by the state court. Thus, not only have

we found the decision in state court to be correct, but also it

appears that, since the contention was fairly heard in state court,

petitioners are not entitled to another review here. See also:

O'Berry v. Wainright, — F.2d —, 45 L.W. 2422 (decided Feb.

11, 1977).

Accordingly, the instant motion will be denied.

It is so Ordered.

Enter this 23rd day of March, 1977.

/s/ (Illegible )

Chief Judge

— T-18 —

APPENDIX C

In the United States District Court for the

Western District of Tennessee

Western Division

James E. Mitchell,

Petitioner,

m Civil C-75-222

Jim Rose, Warden,

Respondent,

and

James Nichols, Jr.,

Petitioner,

" Civil C-75-265

Jim Rose, Warden,

Respondent.

MEMORANDUM AND ORDER

(Filed February 17, 1977)

This cause is before the court following a further reference

to the magistrate and receipt of a second report on reference

from the magistrate. The reference was for the single purpose

of determining whether or not the violation of the Bruton rule

with respect to petitioner Nichols was harmless beyond a rea-

sonable doubt. The magistrate, after reviewing the evidence.

concluded that the violation of the Bruton rule was harmless

beyond such doubt.

—_—~~ =

This court, after consideration, is likewise of the opinion

that the violation of the Bruton rule, considering the content

of the violation of the rule and considering the massive other

evidence against this petitioner, was harmless beyond a rea-

sonable doubt.

With respect to both petitioners, Mitchell and Nichols, the

court is further of the opinion from the record that no racial

discrimination in the composition of the grand jury has been

shown. On the contrary, it appears that one black person

actually served on the grand jury that indicted these petition-

ers, that the foreman was selected for other than racial rea-

sons, and that the foreman did not vote at the time the indict-

ment was rendered.

The Clerk will therefore enter a final judgment dismissing

these actions. It is so Ordered.

Enter this 17 day of February, 1977.

(Illegible)

Chief Judge

— A-20 —

APPENDIX D

In the United States District Court

For the Western District of Tennessee

Western Division

James E. Mitchell,

Petitioner,

” Civil C-75-222

Jim Rose, Warden,

Respondent,

and

James Nichols, Jr..,

Petitioner,

_ Civil C-75-265

Jim Rose, Warden,

Respondent.

ORDER FOR FURTHER RESPONSE

This cause is again before this court following a reference

to the magistrate who filed a report on January 28, 1976.

This court agrees with the magistrate that all claims of peti-

tioners other than their claims having to do with racial dis-

crimination in the selection of the grand jury, including the

foreman of the grand jury, and the claim of petitioner Nichols

based on Bruton v. United States, 391 U.S. 123 (1968),

should be dismissed. It is so Ordered.

The court disagrees with the magistrate to the extent that

he recommends that a hearing be held with respect to racial

ann D0 on

discrimination in the constitution of the grand jury which in-

dicted these petitioners. We are of the opinion, having studied

the record made prior to the trial, that the question of racial

discrimination in the selection of the grand jury was ade-

quately investigated and that the state trial judge, in ruling

that no discrimination had been shown in the selection of the

grand jury, was the correct decision on the record before him.

We do, however, agree with the magistrate that, based upon

the same inquiry, it would appear that a prima facie case has

been made with respect to discrimination in the selection of the

foreman of the grand jury. See Hale v. Henderson, 336 F.Supp.

512, 349 F. Supp. 567, and 485 F.2d 266. The record does

not indicate any evidence introduced to rebut such prima facie

case.

We further agree with the magistrate that there appears to

have been a violation of the Bruton, supra, rule with respect to

the petitioner Nichols in connection with the examination of

the officer who testified concerning the statement made by pe-

titioner Mitchell.

Accordingly, it is Ordered that respondent further answer

these petitions directed to the question concerning discrimina-

tion in selection of foremen of the grand jury and in connection

with the claimed violation of the Bruton rule and, good cause

appearing, twenty-three (23) days are allowed in which to

answer.

Enter this 17th day of February, 1976.

/s/ (illegible)

Chief Judge

— A-22 —

APPENDIX E

In the Supreme Court of Tennessee

at Jackson

James Nichols, Jr. and James Mitchell,

Petitioners

v. Tipton Criminal

j No. !

State of Tennessee,

Respondent |

In Re: Petition for Writ of Certiorari of James Nichols,

Jr. and James Mitchell

Upon consideration of the petition, briefs, and the entire

record in the cause, it is the judgment of this Court that the

Court of Criminal Appeals has correctly dealt with the issues.

The writ is denied.

Per Curiam

OFFICE OF CLERK OF THE SUPREME COURT

For the Middle Division of the State of Tennessee

I, Ramsey Leathers, Clerk of said Court, do hereby certify

that the foregoing is a true, perfect, and complete copy of the

Order Denying Petition for the Writ of Certiorari of said Court,

pronounced March 10, 1975, in case of James Nichols, Jr. and

James Mitchell against State of Tennessee as appears of record

now on file in the office of the Clerk at Jackson.

In Testimony Whereof, I have hereunto set my hand and

affixed the seal of the Court at office in the Supreme Court Build-

ing at Nashville, on this, the 20th day of June, 1975.

Ramsey Leathers

Clerk

Deputy Clerk

— A-23 —

APPENDIX F

In the Court of Criminal Appeals of Tennessee

Jackson, March, 1974

James Nichols, Jr. and James Mitchell ) No. 1

. Hon. Herman L.

State of Tennessee, Reviere, Judge

Defendant-in-Error) (First Degree Murder)

For the Plaintiffs-in-Error: For the Defendant-in-Error:

Wilbur F. Cash and David M. Pack

John E. Proctor Attorney General

Covington, Tennessee

Weldon B. White, Jr.

Assistant Attorney General

Will Terry Abernathy

District Attorney General

Preston Parks

Assistant District Attorney

General

Opinion Filed: June 5, 1974

Affirmed

WILLIAM S. RUSSELL

Judge

OPINION

James Nichols, Jr., and James Mitchell, the plaintiffs-in-error

were jointly indicted in two separate indictments for the murder

a Gta

in the first degree of William Nabors and Claudie Greer. Plain-

tiffs-in-error were tried, found guilty of murder in the first de-

gree, and sentenced to consecutive sentences of sixty years in the

penitentiary in each case.

The murders arvse out of the armed robbery by Nichols and

Mitchell of a cafe in Tipton County. The lengthy record re-

flects that Nichols, with a pistol in each hand, informed the

proprietor that it was a stickup and forced him to hand over the

cash register receipts of about five or six hundred dollars. Nichols

also took money from the person of the proprietor and others,

fired several shots into the back room, and fled.

Simultaneously Mitchell, armed with a sawed-off shot gun,

was in the back room of the cafe robbing some patrons who

were engaged in a dice game. One of those gambling was Wil-

liam Nabors, who was shot in the mouth by Mitchell when

Nabors bent over to pick up some change on the floor. Mitchell

also went into the front room and took some money from the

proprietress and then left. Claudie Greer was killed by a shot

from a .38 calibre pistol. Witnesses in the back room testified

they saw Greer fall after they hear; shot from the front room.

The extensive record contains the testimony of many eye-

witnesses. All of them were in a good position to observe the

stickup men at close range over a considerable period of time,

and all witnesses positively identified plaintiffs-in-error as the

men who perpetrated these brutal murders. Nichols was later

arrested with a .38 calibre pistol in his possession, and a sawed-

off shotgun was found at the apartment of Mitchell's girl friend.

In addition, the Memphis police were given a confession to the

crime by Mitchell, the substance of which was related to the

jury by the police officer who took it.

In view of the foregoing, we overrule the assignments of error

attacking the legal sufficiency of the convicting evidence. It is

— A-25 —

the often-stated rule that this court cannot reverse on the facts

unless the evidence is shown to preponderate against the verdict

of the jury and in favor of the innocence of the accused. Plain-

tiffs-in-error have not made such a showing. McBee v. State, 213

Tenn. 15, 372 S.W.2d 173.

The third assignment states that it was error not to sustain

the plea in abatement to the indictment because the proof showed

that no Negro had ever served as foreman of the grand jury, and

that the eligible grand jurors were selected from the telephone

directory.

The Tipton County jury commissioners were put on the stand

during the hearing on this matter, and they testified that they

were aware of the need to select a proper racial balance and

sought out the names of blacks they knew personally or by

reputation. A sizable number of blacks and people of low in-

come were shown to have in fact served on the jury panels.

Past grand jury foremen testified as to the presence of blacks

on the grand jury. A black who served on the grand jury who

indicted plaintiffs-in-error testified that there was no hostility

toward Negroes on the part of the other jurors. “The question

of whether there has or has not been shown such a systematic

exclusion of racial groups as to violate the rights of an accused

is, necessarily, largely one of fact in each case.” State v. John-

son, 220 Tenn. 49, 413 S.W.2d 694. The facts here do not

demonstrate a systematic exclusion of Negroes upon racial

grounds, and the assignment of error is overruled.

Plaintiffs-in-error, in their fourth assignment of error, con-

tend that it was error to fail to suppress the pistol and shotgun

obtained as a result of their arrest, said arrest being without a

warrant and no search warrant having been obtained.

T.C.A. §40-803 permits an officer to make an arrest, without

a warrant, when a felony has in fact been committed, and he

— A-26 —

has reasonable cause for believing the person arrested committed

it. The facts show that the police had reasonable cause to be-

lieve plaintiffs-in-error had committed the Tipton County mur-

ders, and that they also knew that plaintiffs-in-error were to

leave town the following day. Under the circumstances, an

arrest was proper. The pistol was found incident to the arrest

and was properly admitted into evidence. Goodner v. State, 3

Tenn.Crim.App.569, 464 S.W.2d 339. It also appears that the

officers were invited into the apartment to search by its owner,

and a search with the permission of the owner is not an un-

reasonable search. Deerfield v. State, 220 Tenn.546, 420 S.W.

2d 649.

The Deerfield case also applies with respect to the seizure of

the sawed-off shotgun, since it was found at another location

pursuant to a search after the owners of the premises had volun-

tarily given the police permission to search.

The fifth assignment of error complains of the action of the

trial court in consolidating for trial the two cases of murder.

The cases were properly consolidated because both murders

arose out of the robbery of White’s Cafe by plaintiffs-in-error.

When the offenses charged are similar, related, or connected

such consolidation is proper. State ex rel. Gann v. Henderson,

221 Tenn.209, 425 S.W.2d 616.

The sixth assignment of error argues that it was error not to

sever the trials of Mitchell and Nichols because a confession of

Mitchell was read to the jury. Plaintiff-in-error Nichols reasons

that this confession, made in his absence, denied him the right

to confront Mitchell who did not take the stand. Generally, the

granting of a severance addresses itself to the sound discretion

of the trial court, and we find no abuse of that discretion here.

O'Neil v. State, 2 Tenn.Crim.App.518, 455 S.W.2d 597. No

reference to Nichols was made in the confession, and we do not

think the jury was prejudiced against Nichols in hearing it. The

—_

test in granting a severance is a “likelihood of substantial preju-

dice” if tried together. Hoskins v. State, — Tenn.Crim.App.—,

489 S.W.2d 544. The facts in this case do not meet this test,

and the motion for severance was properly denied.

Plaintiffs-in-error, who were indigent, requested a mental

examination to determine if they were capable of defending the

charges against them. In their seventh assignment of error, they

say that it was error for the trial court to refuse to order such

an examination. Both plaintiff-in-error had been before the

trial court prior to the request for the mental examination and

had presented, pro se, a motion to suppress certain evidence.

The trial court had other opportunities to observe them, and

concluded that they were capable of conferring with counsel.

We find no basis in the record for a holding of prejudicial error

in denying the mental examination.

In the eighth assignment of error, plaintiffs-in-error com-

plain of the trial court’s failure to grant them a continuance until

April 16, 1973 in order to locate additional witnesses who

might have been helpful in their defense. Plaintiffs-in-error

were indicted on November 6, 1972, and the actual trial com-

menced on March 21, 1973. The record shows that the trial

court did grant a continuance to obtain additional defense wit-

nesses, even bringing in one witness plaintiffs-in-error stated

they needed but who was released prior to trial. Four other

defense witnesses for whom a continuance had been granted

were not put on by the defense.

We have held that a motion for continuance is within the

sound discretion of the trial court, and we find no abuse of

discretion in denying a continuance. Frazier v. State, 3 Tenn.

Crim.App.696, 466 S.W.2d 535. Under the facts in this case,

we find that there was a reasonable time in which to prepare

a defense, and further delay would have served no purpose.

— A-28 —

See State ex rel. Leighton v. Henderson, 1 Tenn.Crim.App.598,

448 S.W.2d 82. No prejudice has been demonstrated.

The ninth assignment of error states that the trial court erred

in granting a severance as to one Jesse Ford, a co-defendant

indicted along with Nichols and Mitchell for the murder of

Nabors and Greer. The plaintiffs-in-error contend that by

severing Ford’s case from theirs, they were deprived of possible

help from Ford’s testimony who because of his right against self-

incrimination, could not be forced to testify against his will on

their behalf. That this argument has no merit can readily be

seen, since even had Ford been tried with plaintiffs-in-error, he

would not have had to take the stand against his will.

The tenth and eleventh assignments of error attack the ver-

dict as returned by the jury. Upon returning from their de-

liberations, the jury announced that they had found plaintiffs-

in-error guilty of murder in the first degree as charged in the

indictments, and fixed their punishment “at not less than 30

years and | day and not more than 60 years for each count;

Nos. 846 ard 847.” The trial court recognized that this verdict

was in improper form, since the indeterminate sentence law

does not apply to the capital offenses of murder and rape.

Franks v. State, 187 Tenn.174, 213 S.W.2d 195.

Plaintiffs-in-error maintain that the trial court should have

declared a mistrial when the jury returned the above verdict,

and should not have given them further instructions with ex-

amples as to what form the verdict should be. We cannot

agree. As was said in State ex rel. Myers v. Brown, 209 Tenn.

141, 351 S.W.2d 385, “The Court has the power, and it is his

duty, when a jury offers to return an informal or insufficient

verdict, to send them back to the jury room with directions to

amend it and put it in proper form.” In light of the above, the

— A-29 —

trial court acted properly and the final two assignments of error

are overruled.

Affirmed.

/s/ WILLIAM S. RUSSELL

WILLIAM S. RUSSELL, Judge

Concur:

/s/ MARK A. WALKER

MARK A. WALKER, Presiding Judge

/s/ W. WAYNE OLIVER

W. WAYNE OLIVER, Judge

OFFICE OF CLERK OF THE COURT OF

CRIMINAL APPEALS

For the Middle Division of the State of Tennessee

I, Ramsey Leathers, Clerk of said Court, do hereby certify

that the foregoing is a true, perfect, and complete copy of the

Opinion of said Court, pronounced June 5, 1974, in case of

James Nichols, Jr. and James Mitchell vs. State of Tennessee as

appears of record now on file in the office of the Clerk at Jack-

son.

In Testimony Whereof, I have hereunto set my hand and

affixed the seal of the Court at office in the Supreme Court

Building at Nashville, on this, the 20th day of June, 1975.

/8/ RAMSEY LEATHERS, Clerk

De Ssh Fan cessewes , Deputy Clerk