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).
-5-
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
-7-
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
-8-
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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