IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
August 12, 2003 Session
STATE OF TENNESSEE v. BENTON WILLIAM PAMPLIN
Appeal from the Circuit Court for Bedford County
No. 14880 Lee Russell, Judge
No. M2002-00408-CCA-R3-CD - Filed December 23, 2003
The Appellant, Benton William Pamplin, was convicted by a Bedford County jury of simple assault
and resisting arrest. On appeal, Pamplin presents two issues for our review: (1) whether the trial
court committed reversible error by refusing to strike, for cause, a prospective juror who was a
uniformed deputy sheriff and whose office presented testimony at the trial, and (2) whether the
evidence was sufficient to sustain the verdicts. After review, we conclude that the trial court’s
refusal to strike the prospective juror constituted reversible error in that it denied Pamplin his right
to a fair and impartial jury. Accordingly, the judgments of conviction are reversed and the case is
remanded for a new trial.
Tenn. R. App. P. 3; Judgment of the Circuit Court Reversed and Remanded for New Trial.
DAVID G. HAYES, J., delivered the opinion of the court, in which GARY R. WADE, P. J., and JERRY
L. SMITH, J., joined.
Matt Q. Bastian, Columbia, Tennessee, on appeal, for the Appellant, Benton William Pamplin.
Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Kim R.
Helper, Assistant Attorney General; William Michael McCown, District Attorney General; and
Michael Randles, Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINION
Factual Background
The Appellant’s actions, which resulted in his being indicted for assault and resisting arrest,
arose from a partition suit. The property to be partitioned was jointly owned by the Appellant’s two
sisters and consisted of a house and lot in Shelbyville. Because the property was scheduled for sale,
the Appellant and other family members had begun moving items of personal property from the
premises. On July 15, 2000, Shelbyville Police Officer Eric Ely, acting upon a complaint, appeared
at the property address and advised all family members present that no one was to enter the
residence. On Officer Ely’s third visit to the property, he was advised by the cleaning crew that the
Appellant and other family members had returned to the property and were carrying away various
items. At this point, Officer Ely walked over to the Appellant’s residence, which was nearby, and
an argument quickly ensued between the two. Officer Ely ordered the Appellant to go inside his
residence, when, according to Officer Ely, the Appellant “took a swipe at my face at that time, that
was assault, and I went to place him under arrest. He resisted . . . .”
The trial began on October 9, 2001. During voir dire, the jury panel was informed that
Bedford County Sheriff Clay Parker would appear before the jury and read into evidence a
“stipulated statement/deposition” of Deputy Jimmy Parker, as the latter Parker was out of town.
Deputy Parker, who was a captain with the Sheriff’s Department, had responded to one of the calls
at the residence and had assumed an active role in the case. After voir dire of the prospective jurors
had concluded, defense counsel submitted three peremptory challenges in the first round. At a
subsequent bench conference, defense counsel informed the court that he had mistakenly believed
that he had five peremptory challenges. Upon being advised by the trial court that he had used all
his peremptory challenges, defense counsel then challenged, for cause, prospective juror, Tony
Barrett, a Bedford County Deputy Sheriff.1
Voir dire examination established that Juror Barrett was currently employed as a Bedford
County Deputy Sheriff and had previously served as a judicial commissioner for eight years. Barrett
acknowledged that he knew the Appellant and Officer Eric Ely. Barrett also acknowledged that his
“sister-in-law works for the DA.” Finally, in addition to Juror Barrett being a subordinate employee
of a prosecuting witness, the record reflects that Barrett reported for jury duty in full deputy sheriff
uniform, including badge and sidearm.
Notwithstanding the above facts, the trial court refused to strike Barrett for cause, finding that
“both sides kept him” and that nothing precludes a law enforcement officer from serving on a jury.
After the jury was sworn, Juror Barrett was elected foreman. Following the jury’s verdicts, the
Appellant received an eleven months, twenty-nine-day sentence for the assault and a six-month
sentence for resisting arrest, with service of one hundred twenty days in the county jail.
1
In this regard, the State argues that, b ecause the Ap pellant failed to follow the pro per selection p rocedures,
he canno t now challenge the jurors’ qualifications on appeal. The State contends that Rule 24(c),Tennessee Rules of
Criminal Procedure, requires, “After prospective jurors have been passed for cause, counsel will subm it simultaneously
and in writing to the trial judge, the name of any juror in the group of the first twelve who have been seated that either
counse l elects to challenge peremptorily.” Because Juror B arrett was initially passed for cause in the first round, th e
State asserts that any future challenges for cause are foreclosed. We disagree. As is permitted with a peremptory
challenge, we find nothing in the rule which would preclude a challenge for cause at any time prior to a full jury being
selected and accepted by counsel. Id. Because the Ap pellant had exhausted all o f his perempto ry challenges and his
challenge against Juror B arrett wa s denied, his claim that he was denied the right to trial before an impartial jury is not
procedurally barred. See Sta te v. Kilburn, 782 S.W .2d 199, 202 (Ten. Crim. App. 198 9).
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ANALYSIS
Both Article 1, Section 9 of the Tennessee Constitution and the Sixth Amendment to the
United States Constitution guarantee an accused in a criminal prosecution the right to a trial by an
impartial jury. Moreover, Tennessee Code Annotated Section 22-1-105 provides that:
Disqualification by interest or relationship. - No person can act as a juror in any case
in which the person is interested, or when either of the parties is connected with the
person by affinity or consanguinity, within the sixth degree, computing by the civil
law, except by consent of all the parties.
This provision has been interpreted to mean that every defendant is guaranteed “a trial by a jury free
of a disqualification propter affectum; that is, a disqualification on account of some bias or partiality
toward one side or the other of the litigation.” Toombs v. State, 270 S.W.2d 649, 650 (Tenn. 1954).
The process of voir dire allows not only the trial court but also the parties an opportunity to ensure
that “jurors are competent, unbiased, and impartial.” State v. Howell, 868 S.W.2d 238, 247 (Tenn.
1993). In particular, “[t]he right of challenge for cause was designed to exclude from the jury triers
whose bias or prejudice rendered them unfit, and peremptory challenge was intended to exclude
those suspected of bias or prejudice.” Manning v. State, 292 S.W.2d 451, 455 (Tenn. 1927).
In assessing a juror’s impartiality following a challenge for cause, the trial court should
inquire “whether the juror’s views would ‘prevent or substantially impair the performance of his
duties as a juror in accordance with his instructions and his oath.’” Wainwright v. Witt, 469 U.S.
412, 424, 105 S. Ct. 844, 852 (1985); see also State v. Harold W. Humphreys, 70 S.W.3d 752, 765
(Tenn. Crim. App. 2001).
A determination of the qualifications of a juror rests within the discretion of the trial court
and will not be overturned absent a showing of an abuse of that discretion. State v. Kilburn, 782
S.W.2d 199, 203 (Tenn. Crim. App. 1989). Indeed, our supreme court has observed that a trial
court’s findings of impartiality may be overturned only for “manifest error.” Howell, 868 S.W.2d
at 248.
With regard to a prospective juror who is not otherwise disqualified to serve,2 there are two
situations where a challenge for cause should be sustained. The first is where the prospective juror
indicates by his or her answer that they cannot or will not be a fair or impartial juror. The second
is where, irrespective of the answers given on voir dire, the trial court should presume the likelihood
of prejudice on the part of the prospective juror because the potential juror has such a close
relationship, be it familial, financial, or situational, with any of the parties, counsel, victims, or
witnesses. See generally, 47 AM JUR 2d, Jury § 266-94 (1995). As observed by the trial judge in
2
Tennessee Code Annotated Section 22-3-102 provides that a prospective juror may be challenged for c ause
“who is incompetent to act as a juror under the provisions of chapter 1 of this act.” Chapter 1 defines those persons who
do not have the qualifications required by the statutes governing jury service. See also Tenn. R. Crim. P. 24(b).
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this case, no Tennessee case or statute requires that a law enforcement officer be automatically
excluded from a jury.3 See State v. Pender, 687 S.W.2d 714, 718 (Tenn. Crim. App. 1984) (holding
that the juror’s status as a police officer, standing alone, did not lead to the conclusion that he was
biased or prejudiced). However, Juror Barrett’s professional relationship and interest in the case was
entirely too close to that of Captain Parker and Officer Ely. Not only was Barrett a member of the
same law enforcement agency as was Captain Parker, he was also a subordinate employee of Parker.
Moreover, the nature of the case involved an assault upon a law enforcement officer. In addition,
Juror Barrett was personally acquainted with Eric Ely, the prosecuting witness, who was a police
officer and victim of the offenses. Finally, we note that the juror served on the jury as its foreman
while in full uniform and with sidearm. With regard to this fact, we are constrained to hold that this
practice should clearly be avoided, as the presence of a uniformed officer on the jury presents the
appearance of authority and undermines the concept of impartiality. We are reminded that the jury
selection process should endeavor to select jurors who are not only fair and impartial but are also free
from the suspicion of impartiality.
CONCLUSION
Based upon the foregoing, we conclude that manifest error exists and that the Appellant’s
challenge of Juror Barrett for cause should have been sustained. In view of our conclusion that the
Appellant was denied his right to a fair and impartial jury, the judgments of conviction are reversed
and this case is remanded for a new trial.
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DAVID G. HAYES, JUDGE
3
This app ears to be the majority rule. See 47 A M. J UR. 2 D Jury § 17 6 (1995 ); see also United States v.
McCord , 695 F.2d 8 23 (5 th Cir. 19 83); Fordham v. State, 513 So.2d 31(Ala. App. 198 6); State v. Hill, 174 Ariz. 313
(Ariz. 199 3); State v. Ba llard, 747 So.2 d 10 77 (La. 1999 ); State v. Matheny, 860 S.W .2d 8 37 (Mo. Ct. A pp. 1 993 ); State
v. Radi, 578 P.2d 1169 (Mont. 1978); State v. Ternes, 259 N.W .2d 2 96 (N.D . 197 7). H owever, some states strictly
preclude law enfo rcem ent officers from serving on juries. See State v. Cooper, 353 S.E.2 d 44 1 (S.C . 198 6); State v.
King, 396 S.E.2d 40 2 (W . Va. 1990). Other jurisdictions allow officers to serve but provide that they m ust or should
be stricken for cause if an ob jection is mad e. Hutcheson v. State, 268 S.E.2 d 64 3 (G a. 1980); State v. Reynolds, 592
A.2d 194 (N.J. 199 1).
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