The Hixson Brief

The Hixson Brief was submitted by Kyle Hixson as part of Walt’s Appeal of State v Fitzpatrick to the Court of Criminal Appeals at Knoxville.

Walt has claimed that:

On 20 September 2013 Tennessee’s Attorney General Robert Cooper admitted in a by way of a court filing submitted by Cooper’s Assistant Attorney General Kyle Hixson that Mr.Jeff Cunningham is not a juror

Source: 17DEC2013-GJCRIMCOM.pdf

What Hixson actually wrote is quite different

The defendant’s argument on this point is based entirely on the text of Tenn. Code Ann. 22-2-314:

A juror who has completed a jury service time shall not be summoned to serve another jury service in any court of this state for a period of twenty-four (24) months following the last day of such service; however the county legislative body of any county, may, by majority vote, extend the twenty-four-month period.

See 2008 Tenn. Pub Acts, ch. 1159, 1 (effective Jan. 1, 2009). The defendant contends that this legislative act overrides the prior judicial decisions allowing the successive service of a grand jury person.

The State respectfully submits that the defendant misapprehends the purpose of section 314. Section 314 does not speak to the qualifications of a citizen to serve as a juror [6]. Section 314 simply prohibits the government from requiring a citizen to appear for jury service too frequently. Further, the foreperson of the grand jury is not “impaneled” form the “summoned” members of the “jury pool”. See Tenn Code Ann. 22-2-306, -307 and -310. The Foreperson is “appoint[ed]” by the trial court Tenn. R. Crim. P. 6(g)(1). As such, section 314, by its terms, does not apply to the appointment process of the grand jury foreperson.

[6] Juror qualification and competency standards are proscribed in Tenn. Code Ann. 22-1-101 through -106.

Walt appears to believe that section 314 somehow overrides Rule 6(g)(1) and the various precedents, however this cannot be concluded based on the simple fact that section 314 talks about “shall not be summoned” and indeed the foreperson of the grand jury is not summoned but rather appointed. Nothing in section 314 overrides this rule.

Furthermore, the Hixson brief does not say that the foreperson is not a juror, just that he is not a juror for the purpose of section 314 which limits itself to jurors who are summoned.

Furthermore, the trial court held two hearings – one on June 28, 2012, and one on October 3, 2012, to adjudicate the defendant’s claims regarding the service of the foreperson on successive grand juries. The trial court entered orders following each of these hearings denying the defendant relief on this point. (II, 152-154, 176-77). In the second order, the trial court indicated that it was denying relief “for the reasons stated orally by the Court” during the hearing on October 3, 2012 (II, 176).

The defendant failed to include the transcript of either of these hearings in the record on appeal.

Similarly the Court of Criminal Appeals stated:

Prior to trial, Appellant filed a motion in which he alleged that his indictment was “counterfeit” because the grand jury foreperson had served a jury in the previous calendar year,  2011. The trial court heard this motion on June 28, 2012, and made the following findings in a written order: Defendant asserts that the grand jury foreperson has illegally served on successive grand juries. Tennessee law, however, is clear that a foreperson may serve on successive grand juries and is not limited to one term. See Nelson v. State, 499 S.W. 2d 956, 956 (Tenn. Crim. App. 1972) and Thompson v. State, 2005 WL2546913, *25 (Tenn. Crim. App. 2005). See also Raybin, Tennessee Criminal Practice & Procedure, §9.8 (2008) (selection of grand jury foreperson). Furthermore, the trial court held another hearing on October 3, 2012, and reconsidered Appellant’s motion to dismiss. The trial court stated in its written order that it was relying upon its “reasons stated orally by the Court ”to deny Appellant’s motions. Appellant failed to include transcripts of the hearings in which the trial court heard evidence and arguments in order to determine this issue. Furthermore, in the trial court’s second order, the trial court referenced its oral findings stated in the hearing culminating in the denial of Appellant’s motion.

For this reason, this issue is waived. Moreover, it appears from the limited record before us that the trial court’s denial of the motion to dismiss was correct under the law.

From the cited precedents we learn for example that:

c. Grand Jury Foreman

The Petitioner contends that Counsel was ineffective be cause he failed to investigate and determine whether the grand jury foreman was authorized to serve by law. Specifically, the Petitioner raises the issue because the grand jury foreman was the same person who voted to indict the Petitioner in a prior matter or matters. The post-conviction court stated: [The] Petitioner says that his original attorney was ineffective for not attacking the long tenure of the Grand Jury Foreman, Art Salyers …. The [P]etitioner, in his testimony , seems to have concluded that Art Salyers had served too long…. Based up on the evidence presented a t hearing , this issue is totally without merit. The Petitioner admits in his brief that this Court has previously decided that a grand jury foreperson may serve longer than the statutory term of two years. See Nelson v . State, 499 S.W. 2d 956, 956 (Tenn. Crim. App. 1972) (holding “[w]e find no authority holding and can think of no valid reason why a grand jury foreman appointed for two years under [the statute] is disqualified to serve longer either by reappointment or holding over.”). Accordingly, we see no valid argument that the grand jury foreman was improperly authorized or that Counsel was ineffective  This issue is without merit.

Source: Thompson v State No. E2004-00920-CCA-R3-PC – Filed October 12, 2005


Thomas P. Nelson complained in his petition for post conviction relief that he was denied due process of law when convicted of two felonies in Sullivan County and sent to the penitentiary because the foreman of the grand jury that indicted him had been in office six or eight years. The petition argues that this makes the foreman a professional juryman and his actions in connection with the indictments void. The Judge dismissed the petition without an evidentiary hearing and petitioner appealed.

We find no authority holding and can think of no valid reason why a grand jury foreman appointed for two years under T.C.A. 40-1506 is disqualified to serve longer either by reappointment or holding over.

Source: Nelson v. State, 499 SW 2d 956 – Tenn: Court of Criminal Appeals 1972