State v. Cleveland

IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
FILED
December 29, 1997
FOR PUBLICATION
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) Filed: December 29, 1997
)
Appellant, )
) HAMILTON CRIMINAL
)
Vs. )
) HON. DOUGLAS A. MEYER,
) JUDGE
JOHNNY LEE CLEVELAND, III, )
a/k/a AKEM ISMIL FUGUAN, )
)
Appellee. ) No. 03-S-01-9612-CR-00118

For Appellant: For Appellee:

John Knox Walkup Ardena J. Garth
Attorney General & Reporter District Public Defender

Michael E. Moore Donna Robinson Miller
Solicitor General Assistant District Public Defender
Chattanooga, Tennessee
Darian B. Taylor
Assistant Attorney General
Nashville, Tennessee

At Trial:
William H. Cox
District Attorney General

H. C. Bright
Assistant District Attorney General
Chattanooga, Tennessee

OPINION

AFFIRMED ANDERSON, C.J.
 The primary issue presented in this appeal of a conviction for attempted

aggravated rape is whether the absence of a juror during a portion of the closing

argument was harmless error, or whether it was prejudicial to the judicial process

and required a new trial. A secondary issue is whether the trial court should

have instructed the jury that aggravated assault is a lesser included offense of

attempted aggravated rape.

At the beginning of the second day of trial, the trial judge replaced a

missing juror with an alternate juror. When the missing juror appeared during

closing argument, the judge removed the alternate juror and replaced him with

the original missing juror. No objection was made. Thereafter, the jury, as then

constituted, found the defendant guilty of attempted aggravated rape.

The absent juror issue was first raised on appeal, after which the Court of

Criminal Appeals found that the juror’s absence was plain error and not subject

to harmless error analysis. The court also found that the trial court should have

instructed the jury that aggravated assault was a lesser included offense of

attempted aggravated rape. As a result, the Court of Criminal Appeals reversed

and remanded the case for a new trial. The State appealed.

After a review of the record and relevant authorities, we conclude that the

juror’s absence during closing argument was a fundamental defect in the

structure of the trial mechanism under article I, § 6 of the Tennessee

Constitution, and was prejudicial to the judicial process. We therefore agree with

the Court of Criminal Appeals that harmless error analysis is not available, and

that a new trial is required. We also conclude that the Court of Criminal Appeals

was incorrect in finding that the trial court should have instructed that the offense

of aggravated assault was a lesser included offense of attempted aggravated

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rape. Accordingly, we affirm the Court of Criminal Appeals’ judgment as

modified.

BACKGROUND

The defendant, Johnny Cleveland, age 23, and the female victim, age 66,

lived in the same neighborhood and were acquainted. One day they met on the

street and the victim agreed to show Cleveland where she lived. After they

entered the victim’s apartment, Cleveland attacked the victim, threw her to the

floor, and forcibly removed her clothes. Cleveland threatened to kill the victim

with a large fork, but during the struggle she was able to trigger an alarm. When

responding maintenance workers heard the victim cry out, they entered and

escorted the naked Cleveland out of the apartment.

As a result of the foregoing events, the defendant was indicted on one

count of attempted aggravated rape for “unlawfully, forcibly or coercively

attempt[ing] to engage in sexual penetration with [the victim], while . . . armed

with a weapon or an article used or fashioned in a manner to lead the victim to

believe it to be a weapon.”

At trial, the prosecution presented all its proof on the first day of trial and

rested. At the beginning of the second day of trial, one of the jurors was

missing, and the trial court picked an alternate.1 The defense then rested without

presenting any evidence, and the prosecution began its initial closing argument.

The missing juror entered the courtroom during the argument. The following

exchange occurred between the prosecutor and the trial judge:

Mr. Bright: Your Honor, do I need to start over?

1
The jury was not sequestered.

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 The Court: Yeah, I guess you really need to start over since he is
now present.

Mr. Bright: I tell you what, I’ll let the other jurors tell him about it.

The Court: Okay.

When closing arguments were finished, the trial court replaced the alternate juror

with the original juror. No objection was made to this procedure by the

defendant. The trial court then instructed the jury on attempted aggravated rape,

for which he had been indicted, and on a number of other offenses -- i.e.,

attempted rape, sexual battery, attempted sexual battery, aggravated sexual

battery, attempted aggravated sexual battery, and assault -- but did not instruct,

as requested, that the offense of aggravated assault was a lesser included

offense of attempted aggravated rape. The jury found the defendant guilty of

attempted aggravated rape.

The defendant contended at the hearing on the motion for new trial that

the trial court was in error for not granting the requested instruction, but did not

raise the absent juror issue. The trial court overruled the motion.

The Court of Criminal Appeals, however, reversed the conviction and

remanded for a new trial, finding that the absence of a juror was plain error that

could not be subjected to harmless error analysis. The court also found that the

trial court should have instructed the jury that the offense of aggravated assault

was a lesser included offense of attempted aggravated rape.

We granted the State’s application for permission to appeal to review

these two important issues.2

2
Although the defendant has briefed several additional issues, our review is limited to the
two is sue s rais ed by t he S tate’s applic ation for pe rm issio n to a ppe al.

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 ABSENT JUROR

The trial court’s action in first discharging an original absent juror and

replacing him with an alternate juror, and then reversing course when the original

juror appeared, followed no recognized procedural course and resulted in the

original juror missing a part of the trial. The State agrees this is error, but

contends it is harmless because no prejudice to the defendant has been shown.

In order to determine whether the error is subject to harmless error analysis, we

first review the scope of the right to trial by jury.

The right to trial by jury is a fundamental right preserved by article I, § 6 of

the Tennessee Constitution and has “special resonance in criminal matters.”

Ricketts v. Carter, 918 S.W.2d 419, 424 (Tenn. 1996). It includes the right to

have a unanimous jury verdict. State v. Shelton, 851 S.W.2d 134, 137 (Tenn.

1993). It also includes the right to have every fact tried and determined by

twelve jurors and to have all issues of fact submitted to the same jury at the

same time. State v. Bobo, 814 S.W.2d 353, 356 (Tenn. 1991); Willard v. State,

174 Tenn. 642, 130 S.W. 99 (1939).

Closing argument assists the jury in determining the facts. The purpose

of summation is to allow each side “to assist the jury in analyzing, evaluating,

and applying the evidence” and it “includes counsel’s right to state his contention

as to the conclusion that the jury should draw from the evidence.” United States

v. Garza, 608 F.2d 659 (5th Cir. 1979); Tenn. R. Crim. P. 29.1; see also

Sonsteng and Haydock, Trialbook, §3.02 (purposes include summarizing factual

theories, significance of evidence, reasonable inferences, and legal theories).

Courts have recognized that closing argument is a valuable privilege afforded to

the State and the defense and have afforded wide latitude to counsel in arguing

their cases to the jury. State v. Bigbee, 885 S.W.2d 797, 809 (Tenn. 1994).

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 Once a jury is impaneled, jurors may be discharged from further service

prior to deliberations only if found by the trial court to be “unable or disqualified to

perform their duties.” Tenn. R. Crim. P. 24(e); see Tenn. Code Ann. § 22-2-312

(1994). Although the decision to discharge a juror and to select an alternate

juror is left to the discretion of the trial judge, State v. Millbrooks, 819 S.W.2d

441, 445 (Tenn. Crim. App. 1991), there is no recognized procedure, statutory

or otherwise, for discharging a juror, selecting an alternate, and then reinstating

the original discharged juror who has missed a portion of the trial, as occurred in

this case. Accordingly, the judge’s action was error.

The primary question we must answer is whether the error is subject to

harmless error analysis. In State v. Bobo, we said that the trial court’s error in

replacing a member of the jury with an alternate juror after the jury had begun

deliberating in violation of Tenn. R. Crim. P. 24(e), “reache[d] past the statutory

and procedural framework of our criminal justice system and encroache[d] upon

certain basic constitutional guarantees under article I, § 6 of our Constitution.”

We compared a violation of the right to a trial by jury to a violation of the right to

counsel or the right to an impartial judge, that is, a “defect[ ] in the structure of

the trial mechanism” which prejudices the judicial process. We held, therefore,

that such an error “def[ies] harmless error analysis” and requires “automatic

reversal.” Id. at 357-58.

The State argues that, unlike Bobo, the error here occurred before the jury

deliberated, and that the defendant, who did not object to the juror’s absence at

trial, failed to show actual prejudice because the juror heard all of the evidence

and missed only a portion of closing argument.3 The State contends this case is

controlled by State v. Chestnut, 643 S.W.2d 343 (Tenn. Crim. App. 1982), in

which the Court of Criminal Appeals held that there was no indication that the

3
Both pa rties indicate that the juro r miss ed twen ty minutes of argum ent.

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defendant had been prejudiced when a sleeping juror missed five minutes of

testimony.

In our view the error so fundamentally prejudices the judicial process that

we do not reach the question of whether the error was harmless and whether

there was actual prejudice. By first discharging and then reinstating the original

juror, the jury included a member who missed a portion of the proceedings. The

right to trial by a jury of twelve members must be “preserved inviolate.” Bobo,

814 S.W.2d at 357. The right, therefore, requires that every effort must be made

to maintain the integrity of the jury’s deliberations. For example, the trial judge

could easily have prevented the error in this case by waiting for the absent juror

to show up or by discharging the absent juror and proceeding with an alternate.

In dissent, Justice Drowota, while acknowledging the presence of error,

contends that the error was harmless because the defendant failed to show

prejudice from the juror’s absence during a short portion of the prosecution’s

closing argument. Requiring such a showing, however, would amount to an all

but impossible burden for a defendant to meet in most cases and require sheer

speculation as to the effect of a juror’s absence. Moreover, the dissent misses

the fundamental point that each juror in a jury of twelve must be present for

every stage of the proceedings to “preserve inviolate” the constitutional right to a

jury trial. Instead, the dissent’s view merely endorses the presence of a

fundamental error without a principled harmless error analysis or a practical

remedy.

We conclude that the error in this case implicated the fundamental right to

trial by jury under article I, § 6 of the Tennessee Constitution and constituted a

defect in the trial mechanism that defies harmless error analysis. Moreover, the

error is one that not only affects the substantial rights of the accused but also

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results in prejudice to the judicial process as a whole. State v. Onidas, 635

S.W.2d 516 (Tenn. 1982); see also Tenn. R. App. P. 36(b); Tenn. R. Crim. P.

52(b). We therefore agree with the Court of Criminal Appeals’ conclusion that

the trial judge’s action was plain error which violated the defendant’s

constitutional right to trial by jury and was, therefore, not subject to harmless

error analysis. The only remedy was a new trial.

LESSER OFFENSES

The trial judge refused to instruct the jury that aggravated assault was a

lesser included offense of attempted aggravated rape. The Court of Criminal

Appeals concluded that was error, and the defendant urges us to agree. In order

to answer the question, we must examine the statutes and case law to determine

the appropriate test for deciding whether one offense is necessarily included in

another.

To satisfy constitutional standards, an indictment or presentment must

provide notice of the offense charged, an adequate basis for entry of a proper

judgment, and suitable protection against double jeopardy. State v. Byrd, 820

S.W.2d 739, 741 (Tenn. 1991). As a result, a defendant cannot legally be

convicted of an offense which is not charged in the indictment or which is not a

lesser offense embraced in the indictment. State v. Trusty, 919 S.W.2d 305, 310

(Tenn. 1996).

Our legislature has said that “in cases of criminal prosecution for any

felony wherein two (2) or more grades or classes of offenses may be included in

the indictment,” a trial judge has the duty to “charge the jury as to all of the law of

each offense included in the indictment, without any request on the part of the

defendant to do so.” Tenn. Code Ann. § 40-18-110 (1990). This duty, therefore,

extends to two types of lesser offenses that may be included in an indictment: a

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lesser “grade or class” of offense, and a “lesser included” offense. Trusty, 919

S.W.2d at 311.

A lesser “grade or class” of offense is established by the legislature and is

determined simply by looking at the offenses set forth in a statutory chapter and

part. See, e.g., Tenn. Code Ann. §§ 39-13-101 through -107 (1991)(“assaultive

offenses”). In contrast, an offense is “lesser included” in another “only if the

elements of the greater offense, as those elements are set forth in the

indictment, include but are not congruent with, all the elements of the lesser.”

Trusty, 919 S.W.2d at 310-311 (quoting Howard v. State, 578 S.W.2d 83, 85

(Tenn. 1979)); see also Tenn. R. Crim. P. 31.

Accordingly, the trial court must instruct the jury on all lesser grades or

classes of offenses and all lesser included offenses if the evidence will support a

conviction for the offenses. The instructions preserve a defendant’s right to fair

and reasonable notice of the charges and allow the jury to consider all relevant

offenses in determining the appropriate offense for conviction. Finally, “allowing

consideration of the lesser included offenses and the offenses of lesser grades

and classes, if the evidence supports guilt on those offenses, more evenly

balances the rights of the defense and the prosecution and serves the interests

of justice.” Trusty, 919 S.W.2d at 311.

Here, aggravated assault is not a lesser grade or class of attempted

aggravated rape. The legislature has included aggravated assault among the

“assaultive offenses” set forth in Tenn. Code Ann. §§ 39-13-101 through -107,

while aggravated rape is among the “sexual offenses” listed in Tenn. Code Ann.

§§ 30-13-501 through -522. Moreover, an attempted crime, as charged here, is

an inchoate offense, Tenn. Code Ann. § 39-12-101 (1990), while aggravated

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assault is an offense carried to completion. See e.g., Trusty, 919 S.W.2d at 312

(aggravated assault not a lesser grade of attempted first-degree murder).

Whether aggravated assault is a lesser included offense in attempted

aggravated rape is a more complex question. The indictment charged the

defendant with “unlawfully, forcibly, or coercively attempt[ing] to engage in sexual

penetration with [the victim], while [he was] armed with a weapon or an article

used or fashioned in a manner to lead the victim to believe it to be a weapon.”

The offense of attempted aggravated rape therefore required the following

elements: 1) the defendant acted with a culpable mental state, i.e., intentionally,

knowingly, or recklessly; 2) the defendant engaged in conduct constituting a

substantial step toward commission of the crime, i.e., attempted to forcibly or

coercively engage in sexual penetration; and 3) the defendant used a weapon or

any article used or fashioned in a manner to lead the victim to believe it to be a

weapon. See Tenn. Code Ann. § 39-11-301 (culpable mental state); Tenn. Code

Ann. § 39-12-101 (attempt); Tenn. Code Ann. § 39-13-502 (aggravated rape).

Aggravated assault, on the other hand, requires proof of an assault

combined with either serious bodily injury or the use of a deadly weapon. Thus,

it requires one of the following combinations of elements: 1) a defendant who,

acting intentionally, knowingly, or recklessly, causes bodily injury to another and

either uses a deadly weapon or causes serious bodily injury; 2) a defendant who,

acting intentionally or knowingly, causes another to reasonably fear imminent

bodily injury and either uses a deadly weapon or causes serious bodily injury; or

3) a defendant who, acting intentionally or knowingly, causes physical contact

with another that a reasonable person would regard as extremely offensive or

provocative, and either uses a deadly weapon or causes serious bodily injury.

Tenn. Code Ann. §§ 39-13-101(a) and -102(a)(1).

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 A close analysis of these elements reveals that aggravated assault is not

a lesser included offense of attempted aggravated rape, as charged in the

indictment. Each form of aggravated assault contains at least one element that

is not necessarily included in the offense of attempted aggravated rape, and,

therefore, not charged in the indictment in this case: bodily injury, reasonable

fear of imminent bodily injury, or physical contact a reasonable person would

regard as extremely offensive or provocative. See Tenn. Code Ann. § 39-13-

101(a)(1)-(3). Although we recognize that any or all of these elements may and

often do accompany an attempted aggravated rape, that does not satisfy the test

for a lesser included offense under the Trusty/Howard analysis.

The defendant’s argument, as well as the Court of Criminal Appeals’

analysis, emphasizes that the evidence presented in this case by the State was

sufficient to support a conviction for aggravated assault.4 We do not disagree; in

fact, the evidence was sufficient to support a separate count in the indictment for

aggravated assault had the prosecutor chosen to pursue such a charge. Yet the

sufficiency or weight of the evidence is not the test for determining if one offense

is necessarily included in another offense. Instead, to preserve a defendant’s

right to receive fair and reasonable notice of the charges, and also to ensure the

prosecution’s right to seek charges on the offenses it deems appropriate, the

focus must be placed on the elements of each offense and the allegations in the

indictment. Howard, 578 S.W.2d at 84.

4
W e also obse rve th at the cas es re lied up on by t he de fend ant in supp ort of his cla im
were all decided prior to Trusty . See, e.g., State v. Reed, 689 S.W.2d 190 (Tenn. Crim. App.
1984).

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 We conclude, therefore, that aggravated assault is not a lesser grade or a

lesser included offense of attempted aggravated rape. The trial court properly

refused to instruct on the offense.5

CONCLUSION

We have determined that the absence of a juror for a portion of the trial

violates the fundamental right to a trial by jury as provided in article I, § 6 of the

Tennessee Constitution and is a defect in the structure of the trial mechanism

which prejudices the judicial process. Such an error is not subject to harmless

error analysis and requires automatic reversal and a new trial. We have also

determined that the trial court did not err in failing to instruct the jury on the

offense of aggravated assault. We therefore affirm the judgment of the Court of

Criminal Appeals as modified. The costs of this appeal are taxed to the State of

Tennessee.

_______________________________
RILEY ANDERSON, CHIEF JUSTICE

CONCUR:

Reid, Birch and Holder, JJ.

Drowota, J., dissenting - see separate dissent

5
We observe that of the remaining offenses charged by the trial court, attempted rape,
aggravated sexual battery, attempted aggravated sexual battery, sexual battery, and attempted
sexual battery are lesser grades or classes of offenses of attempted aggravated rape. Tenn.
Code Ann. § 39-13-501 to -522. For the same reasons described hereinabove, assault is neither
a lesser grade of offense or a lesser included offense.

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 IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE FILED
December 29, 1997

STATE OF TENNESSEE, ) Cecil Crowson, Jr.
FOR PUBLICATION
Appellate C ourt Clerk
)
Appellant, ) Filed:
)
v. ) HAMILTON CRIMINAL
)
JOHNNY LEE CLEVELAND, III, ) Hon. Douglas A. Meyer
a/k/a AKEM ISMIL FUGUAN, ) Judge
)
Appellee. )
)
) No. 03S01-9612-CR-00118
)

CONCURRING/DISSENTING OPINION

I fully concur in the majority’s decision that the trial court did not err in

refusing to instruct the jury on the elements of aggravated assault since it is

neither a lesser grade nor lesser included offense of attempted aggravated rape.

However, I dissent from the majority’s conclusion that the juror’s absence during a

portion of the State’s initial closing argument was a fundamental defect in the trial

mechanism under Article I, § 6 of the Tennessee Constitution which is not subject

to a harmless error analysis and which was prejudicial to the judicial process. For

the reasons that follow, I am of the opinion that harmless error analysis applies

and that neither the defendant, nor the judicial process were prejudiced by the

error in this case.

APPLICABILITY OF HARMLESS ERROR ANALYSIS
 Since there is no recognized procedure for discharging or replacing a juror,

selecting an alternate, and then reinstating the original discharged or absent juror,

the State concedes that the action of the trial court was error. However, the State

argues that the error was harmless. Relying upon State v. Bobo, 814 S.W.2d 353

(Tenn. 1991), the majority holds that the error implicates the fundamental right to

trial by jury under Article I, § 6 of the Tennessee Constitution and constitutes a

defect in the structure of the trial mechanism which is not subject to harmless

error analysis. I disagree.

Article I, § 6 of the Tennessee Constitution provides that the right of trial by

jury must be preserved inviolate, which means that the right must be preserved as

it existed at common law at the time of the adoption of the constitution. Bobo, 814

S.W.2d at 356. Encompassed within the right to trial by jury are the following

principles: (1) every fact must be tried and determined by twelve jurors; (2) all

issues of fact must be submitted to the same jury at the same time; and (3) the

jury verdict must be unanimous. Id.; see also Willard v. State, 174 Tenn. 642, 130

S.W. 99 (1939); State v. Shelton, 851 S.W.2d 134, 137 (Tenn. 1993).

In Bobo, two of these principles were compromised when the trial judge

replaced one of the regular jurors with a previously discharged alternate juror after

deliberations had begun. The error was compounded because the trial judge

failed to instruct the jury to begin deliberations anew. Recognizing that there was

no procedural rule in place to govern the replacement of a regular juror after

deliberations had begun, this Court held that the defendant’s state constitutional

right to a trial by jury had been violated by the trial court’s action. Determining that

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the error amounted to a defect in the structure of the trial mechanism which is not

subject to harmless error analysis, this Court reversed the conviction and adopted

a rule of automatic reversal when a regular juror is replaced with an alternate after

deliberations have begun.6

Contrary to the majority’s conclusion, Bobo clearly does not control the

outcome of this case. Here, the substitution and reinstatement occurred before

deliberations began. The regular juror was absent only during a portion of the

State’s initial closing statement. The juror did not miss any portion of the proof.

The defendant’s right to a trial by jury was not violated in this case. Every fact

was tried and determined by the same twelve jurors at the same time, and the

verdict was unanimous. Although closing argument is a valuable privilege for both

the State and the defense, it is just that, a privilege. Cf. Cone v. State, 747

S.W.2d 353, 357 (Tenn. Crim. App. 1987) (defense counsel waived closing

argument). Closing argument is not part of the constitutional right to a trial by jury.

Moreover, statements of counsel during closing argument are not evidence.

State v. Woods, 806 S.W.2d 205, 211 (Tenn. Crim. App. 1990). Indeed, jurors in

this State are routinely instructed that statements of counsel are not evidence and

should be disregarded if not supported by the proof. T.P.I.-Crim. § 1.07 (3rd ed.

1992). In fact, the jurors in this case were so instructed. Accordingly, in my view,

the error in this case does not implicate the defendant’s right to a jury trial and

therefore is not controlled by the rule of automatic reversal announced in Bobo.

6
I filed a dissent from the majority decision in Bobo, on the basis that adoption of a
procedural rule, rather than an automatic rule of reversal, would better address the question of
whether a regular juror may be replaced with an alternate after deliberations have begun. The
circum stance s of this ca se aga in illustrate the n eed for a proced ural rule in this a rea to pro mote
judic ial effic ienc y and c ons isten cy.

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 More closely resembling the circumstances of this case in my view are the

facts of State v. Chestnut, 643 S.W.2d 343 (Tenn. Crim. App. 1982), perm. app.

denied. 10/4/82. There, three of the jurors had difficulty staying awake during the

testimony of one of the witnesses. The trial judge declared a recess and sent the

jurors from the courtroom when he noticed one of the jurors sleeping. Counsel for

both sides were informed of the trial court’s observation. The record revealed that

the juror had slept through five minutes of proof. Despite the fact that the juror

had actually missed five minutes of proof, the Court of Criminal Appeals applied a

harmless error analysis and affirmed the verdict of the jury. In so holding, the

intermediate court noted that counsel for the defendant did not seek to have the

sleeping juror replaced with the alternate juror who had been awake.

Application of the harmless error analysis to the facts of this case likewise

compel the conclusion that the defendant was not prejudiced by the trial court’s

error in this case. Indeed, the error in this case actually may have inured to the

benefit of the defendant since the juror missed only a portion of the State’s initial

closing argument. Though the parties in this case apparently agree that the juror

missed twenty minutes of argument, it is difficult to conceive how the argument,

which is contained in two pages of transcript, could have taken twenty minutes. In

any event, the State was given the opportunity to repeat its closing argument

when the juror arrived, but declined to do so. As previously stated, the

statements of counsel during closing argument are not evidence. Though it is a

privilege, closing argument may be waived. Although a finding of prejudice might

be justified if the juror had missed the defendant’s closing argument, the

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defendant certainly has suffered no prejudice from the fact that the juror was

absent during a portion of the State’s initial closing argument.

Moreover, contrary to the majority’s holding, the error did not result in

prejudice to the judicial process. Though the actions of the trial court in this case

were error, this was an isolated incident. There is nothing in the record to suggest

that the trial court routinely substitutes alternate jurors and then subsequently

reinstates the absent regular juror. This is not a case which is illustrative of an

ongoing erroneous practice which might constitute prejudice to the judicial

process. Compare State v. Coleman, 865 S.W.2d 455 (Tenn. 1993) (trial court

consistently did not strictly follow procedural rules regarding jury selection, yet this

Court only cautioned that further deviation could result in prejudice to the judicial

process). In fact, the trial judge in this case was careful to point out that the

absent juror missed only a portion of the State’s initial closing argument and no

proof. Therefore, in my view, the error did not result in prejudice to the judicial

process.

Also significant is that the defendant in this case, as in Chestnut, did not

contemporaneously object to the trial court’s decision to reinstate the juror who

arrived late, which he now challenges as error on appeal. Indeed, the issue was

not raised in the defendant’s motion for new trial, and in fact, was raised for the

first time on appeal to the Court of Criminal Appeals. Generally, a defendant’s

failure to timely object to an error constitutes a waiver of appellate review of the

issue. Tenn.R.App.P. 3(e); 13(b) & 36(a). Rule 36(a), Tenn.R.App.P., specifically

directs that relief on appeal need not be granted “to a party responsible for an

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error or [to a party] who failed to take whatever action was reasonably available to

prevent or nullify the harmful effect of an error.” Although appellate courts have

the discretion under Rule 52(b), Tenn. R. Crim. P., and Rule 13(b),

Tenn.R.App.P., to grant relief for plain error, even if the error has not been

preserved for appellate review, this is an extraordinary remedy which should be

applied sparingly as is clearly stated in the Advisory Commission Comments to

Rule 13, Tenn. R. App. P. Because the error in this case neither affected the

substantial rights of the accused, nor resulted in prejudice to the judicial process,

this is not an appropriate case for application of the plain error doctrine.

Therefore, in my view, the error was actually waived, and appellate review of the

issue is not available. However, even considering the merits of the claim, as the

majority does, I am of the opinion the error was harmless.

CONCLUSION

For the reasons previously stated, I dissent from the majority’s conclusion

that the juror’s absence during closing argument was a fundamental defect in the

trial mechanism under Article I, § 6 of the Tennessee Constitution which is not

subject to harmless error analysis and which was prejudicial to the judicial

process. I am of the opinion that harmless error analysis applies and that neither

the defendant, nor the judicial process were prejudiced by the error in this case.

Accordingly, I would reverse the decision of the Court of Criminal Appeals and

reinstate the judgment of the trial court upholding the defendant’s conviction for

attempted aggravated rape.

______________________________

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 FRANK F. DROWOTA III,
JUSTICE

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