            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                                   Assigned on Briefs May 3, 2005

              GEORGE OSBORNE WADE v. STATE OF TENNESSEE

                      Direct Appeal from the Circuit Court for Obion County
                              No. 3-09  William B. Acree, Jr., Judge



                      No. W2004-00214-CCA-R3-PC - Filed August 22, 2005


The petitioner challenges the denial of his post-conviction petition, in which he contended, inter
alia, that counsel was ineffective in failing to object to the composition of the jury pool. Upon
review, we conclude that the petitioner failed to demonstrate that the venire was violative of his
Sixth Amendment rights. As such, he has likewise failed to prove that counsel’s failure to object
to the venire amounted to deficient performance or resulted in prejudice to him. We affirm the
judgment of the post-conviction court.

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
DAVID H. WELLES, J., joined.

Timothy Boxx, Dyersburg, Tennessee, for the appellant, George Osborne Wade.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
Thomas A. Thomas, District Attorney General; and James T. Cannon, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                                   OPINION

                                        Facts and Procedural History

        The petitioner, George Osborne Wade, was convicted by an Obion County jury of one count
of sale of a controlled substance within 1000 feet of a school (a Class A felony) and was sentenced
as a Range I, standard offender to twenty-three years of incarceration.1 The judgments and sentences
were affirmed by a panel of this court on direct appeal. See State v. Roger Neal James and George
Osborne Wade, No. W2000-01301-CCA-R3-CD, 2002 Tenn. Crim. App. LEXIS 231 (Tenn. Crim.
App., at Jackson, Mar. 15, 2002), perm. to appeal denied (Tenn. Sept. 30, 2002).
        1
           The petitioner’s co-defendant in the underlying case was convicted of delivery of a controlled substance
within 1000 feet of a school and was sentenced to twenty-five years of incarceration.
        On January 15, 2003, the petitioner filed a pro se petition for post-conviction relief.
Thereafter, the post-conviction court appointed counsel, and an amended petition was filed on May
5, 2003. The petitions contended, inter alia, that (1) the petit jury pool was unconstitutionally
selected in that it significantly under-represented African Americans; and (2) counsel “failed to raise
the issue and, as a result, [the petitioner’s] rights were violated.”

         At the post-conviction hearing, the petitioner testified that an insufficient number of African
American individuals were present in the jury pool and that its composition was not representative
of their corresponding population in Obion County. Specifically, he recalled that only one African
American woman was present in the venire and that she was granted dismissal for personal reasons.2
In answer to a question posed by the court, post-conviction counsel noted that objections raised to
the composition of the venire by counsel for both the petitioner and his co-defendant were overruled
because they were not made before the jury was selected and seated. 3 Although counsel was called
to testify at the post-conviction hearing, she was not questioned regarding the makeup of the jury
pool.

       Following the hearing, the post-conviction court took the petition under advisement and later
denied it by written order. Particularly with respect to the venire, the post-conviction made the
following findings of fact:

               In alleging that his trial counsel was ineffective, the petitioner cites several
         grounds.

                  The petitioner, who is black, first contends that his trial counsel failed to
         object to the composition of the jury and the jury pool. Evidence before the Court
         is that there was one black person in the jury pool, but that person did not serve on
         the jury.

                The absence of blacks on the jury was raised at the trial Court. The transcript
         of evidence reflects:

                  “Mr. Johnson: Well, I wouldn’t go that far. I would like to put on the
                  record, though, it concerns me that there’s not a single African
                  American on the jury, and there’s only one in the whole jury pool
                  that’s here today. I mean, I don’t know, but given that the defendants
                  are African[-]Americans, that concerns me.

                  General Cannon: That’s a pretrial matter, Your Honor, if he wants to
                  strike the –

         2
           The record reflects that the juror was dismissed because her children were at home without supervision.
         3
           This statement appears to be in error, as the record reflects that only co-defendant’s counsel, Colin Johnson,
raised an objection to the venire.

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                Mr. Johnson: Well, I understand that, but –

                General Cannon: He should have filed it.

                The Court: You’re making an objection. What do you want me to
                do?

                Mr. Johnson: I don’t know. I just want it on the record.”


                In State v. Buck, 670 S.W.2d 600 (Tenn. 1984), the court in citing Taylor v.
        Louisiana, 419 U.S. 522 (1975), said that when a defendant is attempting to establish
        an improper jury venire, he must show: (1) that the group alleged to be excluded is
        a “distinctive” group in the community; (2) that the group’s representation and the
        source from which juries are selective [sic] is not fair and reasonable in relation to
        the number of persons in the community; and (3) that this under representation
        results from systematic exclusion of the group in the jury selection process.

                 The Court first finds that this issue should have been raised on direct appeal
        and was waived by the failure of the petitioner to do so. In addition, this Court finds
        that the petitioner has introduced no evidence to satisfy the second and third prongs
        of the test set forth in State v. Buck. Thus, this Court cannot conclude that the failure
        to raise this issue was valid or that it would have affected the outcome of the trial.

The petitioner timely appeals to this court, challenging only the issue of ineffective assistance of
counsel as it pertains to a failure to object to the composition of the jury pool. Following our review,
we affirm the denial of post-conviction relief.

                                                Analysis

       Contrary to the findings of the post-conviction court, we initially note that the petitioner’s
claim of ineffective assistance of counsel has not been waived. While it is true that counsel waived
the constitutional objection to the venire by failing to assert it at trial or on appeal, we are now called
upon to address whether or not that waiver was tantamount to ineffective assistance of counsel.
Therefore, we will proceed to the merits of the petitioner’s contention.

        This court reviews a claim of ineffective assistance of counsel under the standards of Baxter
v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984). The petitioner has the burden to prove that (1) the attorney’s
performance was deficient, and (2) the deficient performance resulted in prejudice to the defendant
so as to deprive him of a fair trial. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Goad v. State,
938 S.W.2d 363, 369 (Tenn. 1996); Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). The failure


                                                   -3-
to prove either deficiency or prejudice justifies denial of relief; therefore, the court need not address
the components in any particular order or even address both if one is insufficient. Goad, 938 S.W.2d
at 370. In order to establish prejudice, the petitioner must establish a “reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

        The test in Tennessee to determine whether counsel provided effective assistance is whether
his or her performance was within the range of competence demanded of attorneys in criminal cases.
Baxter, 523 S.W.2d at 936. The petitioner must overcome the presumption that counsel’s conduct
falls within the wide range of acceptable professional assistance. Strickland, 466 U.S. at 689, 104
S. Ct. at 2065; State v. Honeycutt, 54 S.W.3d 762, 769 (Tenn. 2001). Therefore, in order to prove
a deficiency, a petitioner must show “that counsel’s acts or omissions were so serious as to fall below
an objective standard of reasonableness under prevailing professional norms.” Goad, 938 S.W.2d
at 369 (citing Strickland, 466 U.S. at 688, 104 S. Ct. at 2065).

         In reviewing counsel’s conduct, a “fair assessment . . . requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s perspective at the time.” Nichols v. State, 90
S.W.3d 576, 587 (Tenn. 2002) (citing Strickland, 466 U.S. at 689, 104 S. Ct. at 2065). The fact that
a particular strategy or tactic failed or hurt the defense does not, standing alone, establish
unreasonable representation. However, deference to matters of strategy and tactical choices applies
only if the choices are informed ones based upon adequate preparation. Henley v. State, 960 S.W.2d
572, 579 (Tenn. 1997); Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).

        In order to prove either prong of the Strickland test, the petitioner must demonstrate that his
right to a venire representative of a fair cross-section of the community was violated. See State v.
Bell, 745 S.W.2d 858, 860 (Tenn. 1988) (citing Taylor v. Louisiana, 419 U.S. 522, 95 S. Ct. 692
(1975)). In order to prove this violation, the petitioner must show that: “(1) the group alleged to be
excluded is a distinctive group in the community; (2) the representation of this group in venires from
which juries are selected is not fair and reasonable in relation to the number of persons in the
community; and (3) this under-representation results from systematic exclusion of the group in the
jury selection process.” Duren v. Missouri, 439 U.S. 357, 364, 99 S. Ct. 664, 668 (1979)

         While African Americans are certainly “a ‘distinctive’ group in the community,” we agree
with the post-conviction court that the petitioner failed to present any proof whatsoever as to the
latter two requirements. With the exception of the petitioner’s opinions, no testimony was elicited
at the post-conviction hearing regarding the composition of the venire in relation to the population
of African Americans in the surrounding community.

       The record is likewise devoid of any proof of “systematic exclusion” of African Americans
from the jury selection process. Although the petitioner attempts to prove this element by
referencing a similar case from Obion County in his brief, it is noted that no systematic exclusion


                                                  -4-
was proven in that case. See State v. Bobby Lee, No. W2003-02948-CCA-R3-CD, 2004 Tenn.
Crim. App. LEXIS 705 (Tenn. Crim. App., at Jackson, Aug. 11, 2004). The petitioner cannot meet
his burden by simply “stacking” cases in which the venire is challenged but no violation is proven.

        Therefore, having failed to establish that the venire violated the fair cross-section
requirement, the petitioner has likewise failed to establish that counsel’s failure to object constituted
deficient performance or that it prejudiced him in any way.

                                              Conclusion

        We affirm the denial of post-conviction relief.




                                                        ___________________________________
                                                        JOHN EVERETT WILLIAMS, JUDGE




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