dissenting.
I must dissent from the view of the majority. If an evidentiary hearing were to establish that the process of selecting any one of the grand jury or its foreman is racially discriminatory, there exists an unacceptable risk of taint to the grand jury as a whole.
Grand jurors in Tennessee are chosen at random, from a list of qualified potential jurors compiled by jury commissioners:
Tenn.Code Ann. § 22-2-302. Selection of names for jury list — Jury book— Jury box — Method of selection in Shelby County. — (a)(1) Said board of jury commissioners shall meet in the circuit court clerk’s office at a time fixed by the judge or judges appointing said board, and on the first Monday, in the month in which such original meeting is held every two (2) years thereafter, and shall then and there select, from the tax records and the permanent registration records of the county, or other available and reliable sources, a list of names of upright and intelligent persons known for their integrity, fair character and sound judgment who are otherwise legally qualified to serve as jurors from each district in the county and in proportion to the population of such districts, as near as may be, to serve as jurors in the circuit and criminal courts of such county for the ensuing two (2) years.
(1980 Replacement, formerly Tenn.Code Ann. § 22-228)
Tenn.Code Ann. § 22-2-304. Drawing of names from jury box for jury service. — (a)(1) On Monday, two (2) weeks before each regular or special term of the criminal court or circuit court in *879counties where such court is held, said board shall unlock the jury box and break the seal thereof, and after well shaking the same, cause to be drawn therefrom in the presence of the board and the clerk, by a child under ten , (10) years of age, that number of names which the presiding judge of said court shall have directed to be drawn, to constitute the regular panel of grand and petit jurors for such term of court.
[Formerly governed by § 40-1501 and 40-1502 — (Repealed, 1979 Ch. 399 § 1).]
The foreman1 is appointed by the judge of the court having criminal jurisdiction:
Rule 6(g), Tenn.R.Crim.P. Appointment, Qualifications, Term, Compensation, Vote, and Duties of Foreman.— The judge of the court authorized by law to charge the grand jury and to receive the report of that body shall appoint the foremen of the grand juries in the counties of their respective jurisdictions. If concurrent grand juries are impaneled, a foreman shall be appointed for each grand jury. Every person appointed as a foreman shall possess all the qualifications of a juror.
[Formerly governed by Tenn.Code Ann. § 40-1506 (repealed 1979 Ch. 399 § 1).]
This difference in selection is critical on the issue presented by this appeal. Because grand jurors are chosen in a manner different from their foremen, any discrimination in the selection process of the former will not necessarily apply to the latter. The converse is equally true. In my view, whether the judge has appointed the grand jury foreman in a racially discriminatory manner is a separate question altogether from whether the grand jury list was so selected.
In Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979), the United States Supreme Court assumed for purposes of that case, “that the Tennessee method of selecting a grand jury foreman is susceptible of abuse.” The essence of the ruling is as follows:
Because discrimination on the basis of race in the selection of members of a grand jury strikes at fundamental values of our judicial system and our society as a whole, a criminal defendant’s right to equal protection of the laws is denied when he is indicted by a grand jury from which members of a racial group have been purposefully excluded.
Id. 99 S.Ct. at 2995.
In my opinion, the defendant should at least be permitted the opportunity to demonstrate that an abuse in the selection of the grand jury foreman has, in fact, occurred.
The role of Tennessee’s grand jury foreman is in large part ministerial or clerical in nature. For the period in question, foremen did not appear to have (nor do they presently have) “virtual veto power over the grand jury as a whole.” See, contra, Hobby v. United States, 468 U.S. 339, 104 S.Ct. 3093. With due respect to the dicta of the United States Supreme Court in Hobby, this court has previously concluded that no such authority rests in the foreman. See State v. Chambless, 682 S.W.2d 227 CTenn.Crim.App.1984); Applewhite v. State, 597 S.W.2d 328 (Tenn.Crim.App.1984). The fact that the foreman’s authority is limited, however, does not mean that his chore, or those of the other grand jurors, is insignificant. Nor does it excuse a discriminatory selection process.
The extent of the power a foreman possesses, as I understand, is not controlling on this issue. The trial court, in my view, did not err by its interpretation of the authority provided the foreman but by its determination that, because foremen in Tennessee had no powers above those of other grand jurors, the issue of his selection had previously been determined by the review on direct appeal of the method used *880to choose the grand jury. See State v. Jefferson, 559 S.W.2d 649 (Tenn.Crim.App.1977).
When this court considered on the first appeal the defendant’s complaint about the selection of grand jurors, no issue was made of either the racial background of the foremen that sat on the grand juries in Davidson County or the procedure implemented by the trial judge in their selection. See Id. The court in Jefferson did not have before it an appropriate record to address the question of foreman selection.
While I do not reject the view of this court in its challenge to the accuracy of the the United States Supreme Court’s interpretation of the Tennessee foremen’s authority (see Hobby and Jefferson), I believe that there is a significant difference in the selection of foremen in the federal system and those selected under the Tennessee procedure. Id. 468 U.S. at 347,104 S.Ct. at 3098. In Hobby, the court held that in the federal system, where a foreman is chosen from a duly constituted grand jury and his or her duties are merely clerical in nature, there was no risk of distortion in the overall composition of the grand jury or taint in the operation of the judicial process. If Tennessee had implemented the federal system at the time of the defendant’s indictment, the issue in this case would have been resolved by the earlier ruling.
The Tennessee system does not, however, necessarily preclude the possibility of taint in the selection of the foreman even though the manner in which the other grand jurors are chosen is free of impermissible discrimination. The judge may appoint the foreman from the public at large so long as he or she meets the qualifications of a grand juror. Even though the grand jurors may be chosen in a completely non-discriminatory fashion, there exists at least the possibility that those of certain racial or ethnic backgrounds are specifically and systematically excluded from service as foremen. In my analysis, the defendant should be afforded the opportunity to present any evidence of his claim through the post-conviction procedure.
I would note that the defendant s claim has not been waived under Tenn.Code Ann. § 40-30-112(b). His conviction occurred in 1971. His direct appeal was decided in 1975, four years before the decision in Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993. The petitioner did attack the racial composition of the grand jury by his plea in abatement. Prior to Rose, no precedent existed for the separate issue of whether the grand jury foreman was chosen in a discriminatory manner. Under these circumstances, there could not have been an informed waiver of the issue.
. The rule provides no gender neutral terminology; thus &e references in this opinion are to "foreman" or “foremen.”