State of Tennessee v. James Denver Case

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
July 14, 2015 Session

STATE OF TENNESSEE v. JAMES DENVER CASE

Direct Appeal from the Circuit Court for Dickson County
No. 22CC-2012-CR167 Robert Bragg, Judge

No. M2014-00949-CCA-R3-CD – Filed November 24, 2015

A Dickson County Circuit Court Jury convicted the appellant, James Denver Case, of
first degree felony murder, aggravated robbery, a Class B felony, and aggravated
burglary, a Class C felony, and the trial court immediately sentenced him to life in prison
for the murder conviction. After a sentencing hearing, the trial court sentenced him to
eight years for aggravated robbery and three years for aggravated burglary with all of the
sentences to be served concurrently. On appeal, the appellant contends that the evidence
is insufficient to support the convictions, that the trial court erred by instructing the grand
jury in the presence of the jury venire, and that the trial court erred by allowing the
deliberating jury to view a video in the courtroom without the appellant‟s being present.
Based upon the oral arguments, the record, and the parties‟ briefs, we affirm the
judgments of the trial court.

Tenn. R. App. 3 Appeal as of Right; Judgments of the Circuit Court are Affirmed.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and ALAN E. GLENN, JJ., joined.

Michael J. Flanagan, Nashville, Tennessee, for the appellant, James Denver Case.

Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant
Attorney General; Dan M. Alsobrooks, District Attorney General; and Wendall Ray
Crouch, Jr., Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

I. Factual Background
 In April 2012, the Dickson County Grand Jury indicted William Dallas Forrester,
Angela Marie Warner, and the appellant for the first degree felony murder of John
Edward Travierso, Sr.; the aggravated robbery of his son, John Edward Travierso, Jr.; and
aggravated burglary.1 The appellant was tried separately from his codefendants.

At trial, Trina Travierso testified that she was the victim‟s wife and that they
married in 1981 when they were both seventeen years old. At the time of the victim‟s
death, his mother had Alzheimer‟s, and he cared for her in the Travierso home full time.
On the night of October 22, 2011, Trina Travierso got home from work about 7:30 p.m.
The victim left about fifteen minutes later and was gone less than one hour. Mrs.
Travierso helped the victim‟s mother get ready for bed and knew the victim was home
because she heard him talking with their son. Mrs. Travierso went into her bedroom to
put on her pajamas and heard “something kind of like a scuffle.” She then heard the
victim say, “„[G]et the [f***] out of my house.‟” Mrs. Travierso knew from the victim‟s
tone that something was wrong, stepped from her bedroom into the hallway, and saw
someone standing at the end of the hallway. She said that the person was “backlit
because the living room light was on but the hallway was dark” and that she saw the
person pointing something at her. The person yelled for her to get down, but she stepped
back into her bedroom. She heard three gunshots and someone say, “„[O]h, [f***].‟”

Mrs. Travierso testified that she heard the front door slam and that her son came
into the bedroom and told her to call the police because the victim had been hurt. She
went into the kitchen, saw the victim on his knees, and began dialing 9-1-1. The victim
showed her that he had been shot in his abdomen and told her that he was dying. The
victim was transported to a hospital and underwent surgery but did not survive.

Mrs. Travierso testified that the person in the hallway was dressed in all-black
clothing, including black gloves and black “head gear” with two eyes but no mouth “cut
out.” She later said the person “possibly [had] some red in the front.” Mrs. Travierso
stated that she was five feet, three inches tall and that the person was slightly taller than
she. She saw only one person, and none of her personal property was taken. Mrs.
Travierso said that she had never sold marijuana but that her son had sold it and that “[h]e
had a lot of friends coming over.”

Officer Wes Boker of the Dickson Police Department (DPD) testified that he was
dispatched to the Travierso home on October 22 and was the first officer on the scene. He
arrived at 8:41 p.m., and it was dark outside. Officer Boker said that a young man, John
Edward Travierso, Jr., was sitting on the front porch and was screaming and crying for
Officer Boker to help his father. Officer Boker tried to calm Travierso, Jr., and waited

1
Although Travierso, Sr., and Travierso, Jr., are both victims in this case, we will refer to the
victim of the felony murder as “the victim” and the victim of the aggravated robbery by his surname to
avoid confusion.

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for backup. As soon as another officer arrived, the officers went inside the home. The
victim and his wife were in the kitchen. The victim was lying on his back, and his wife
was kneeling beside him. Almost immediately, Officer Boker noticed the strong odor of
pepper spray. He said he helped search the residence and secure the scene, and he
acknowledged finding drug paraphernalia owned by Travierso, Jr.

On cross-examination, Officer Boker acknowledged that according to his report,
Travierso, Jr., was standing on the front porch when he arrived and “somewhat calmly”
asked for the officer to help his father. Officer Boker said Travierso, Jr., was crying but
“wasn‟t very upset.” Travierso, Jr., told Officer Boker that before the officers arrived, he
was “ditching some dope out the door.”

Detective James Lyell of the DPD testified that on October 22, 2011, he was
dispatched to a home on Robin Hood Road. He arrived at 10:06 p.m., and the victim had
been removed from the scene. Detective Lyell spoke with Trina Travierso and Travierso,
Jr., but neither was able to identify the intruders. Another officer had found drug
paraphernalia in the yard, and Detective Lyell asked Travierso, Jr., if he had been
involved in selling drugs that night. Travierso, Jr., said no, and Detective Lyell
ultimately determined that he was not involved in the shooting. However, Travierso, Jr.,
had been posting photographs of “wads of cash” and marijuana on his cellular telephone,
which “made him a target.”

Detective Lyell testified that he found three bullets on the kitchen floor and sent
them to the Tennessee Bureau of Investigation (TBI) Crime Laboratory. The Crime Lab
later reported that the bullets were “„38 357 caliber semi-jacket hollow point” and that
they were “consistent with a Winchester manufacture.‟” Detective Lyell had received “a
tip” that William Forrester was involved in the shooting and that Forrester had purchased
the ammunition at Walmart. Forrester‟s date of birth was February 25, 1982, and he was
the appellant‟s half-brother. Detective Lyell contacted Walmart and requested
information about Forrester‟s purchase. On November 22, 2011, Detective Lyell
received Forrester‟s receipt and a video showing him purchasing the bullets. Detective
Lyell had spoken with the appellant before he obtained the video, and the appellant had
claimed that he did not know Travierso, Jr.

Colleen Lewis, an asset protection associate for Walmart, testified that sometime
after October 22, 2011, she spoke with Detective Lyell. Based on their conversation,
Lewis “looked up the electronic journal for a receipt.” The receipt was for the purchase
of “38 special, jagged . . . hollow points” on October 20, 2011, and the purchaser‟s date
of birth was “2-25- ‟80 something.”

Twenty-year-old John Edward Travierso, Jr., testified that he was eighteen years
old on October 22, 2011. That night, he and the victim were standing in the kitchen when
two men “burst[]” through the front door in the living room. The men were wearing

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black clothing and masks that completely covered their faces. One of them was holding a
gun, and they demanded that Travierso, Jr., and the victim get onto the floor. Travierso,
Jr., did as he was told, but the victim told the men to get out of his house. One of the men
kept ordering the victim onto the floor, but the victim refused. The second man “came
around from behind” the victim, sprayed the victim with pepper spray, and walked down
the hallway toward Mrs. Travierso‟s bedroom.

Travierso, Jr., testified that the victim wiped the pepper spray from his eyes and
tried to hit the man who was holding the gun. The man hit the victim, and the victim fell
back into the kitchen. Travierso, Jr., heard three or four gunshots, and the two intruders
ran out the front door. Travierso, Jr., said he ran to his bedroom, gathered all of his
“paraphernalia junk,” and threw it out the back door. He stated, “I don‟t know what I
was thinking honestly. If I could take back - [that‟s] not what I‟d [be] doing the last few
seconds that I‟d see my father.” He stated that he later discovered that his iPod and about
one ounce of marijuana were missing. The marijuana had been in a jar in the headboard
of his bed. He acknowledged that he sold marijuana out of the house and said that he was
“pretty sure” his parents knew about it. However, they never confronted him about his
selling marijuana.

Travierso, Jr., testified that one of the robbers was five feet, nine inches to six feet
tall and that the shooter was “a little bit taller.” He said the entire incident lasted about
two minutes. After the shooting, the victim asked his son for a pillow, so Travierso, Jr.,
got a pillow off the living room couch, and Mrs. Travierso put it under the victim‟s head.
Travierso, Jr., acknowledged knowing Casey Thompson and said that Thompson had
been “a buddy of mine.” A couple of days before the shooting, Travierso, Jr., was going
to sell marijuana to Thompson. When Thompson arrived at the Travierso home, the
appellant was with him. Thompson walked up to the house and told Travierso, Jr., that
the appellant wanted him to “come out to the car.” Travierso, Jr., noticed that the
appellant had backed his car into the driveway, thought the situation “seemed fishy,” and
refused to go to the car. Eventually, the appellant came to the front door of the home.
However, the appellant did not want to come inside, and Travierso, Jr., would not sell
drugs on the front porch, so the appellant and Thompson left. Travierso, Jr., said he did
not know Forrester or Warner.

On cross-examination, Travierso, Jr., testified that he had “different customers”
and that some of them knew he kept marijuana in his bedroom. He acknowledged that
selling marijuana was a “dangerous business” and that he worried about being “ripped
off.” After the shooting, Traiverso, Jr., gave Detective Lyell a list of people who could
have been responsible. He acknowledged giving a statement to the police after the
shooting and describing one of the robbers as five feet, nine inches tall and the other as
five feet, two inches tall. He said that regardless of their heights, the taller man was the
shooter. He said he also thought the shooter had braids but that “I don‟t know why.”
After the shooting, Thompson was concerned that Travierso, Jr., thought Thompson was

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involved.

Twenty-year-old Casey Thompson testified that he went to high school with
Travierso, Jr., and that he lived in the same neighborhood as the appellant when they
were growing up. On October 19, 2011, Thompson took the appellant to the Travierso
home to buy marijuana. However, after Travierso, Jr., refused to sell marijuana to the
appellant, the appellant told Thompson that he was going to rob Travierso, Jr. Thompson
told the appellant not to rob him because he was Thompson‟s “pot dealer.”

Thompson testified that on the night of October 22, 2011, he went to a birthday
party and spent the night at a friend‟s house. The next day, the appellant came to his
home and told him that the appellant and Forrester had gone to the Travierso home, that
that the victim had “put up a fight,” and that the appellant had sprayed the victim with
pepper spray. The appellant claimed that he ran to Travierso, Jr.‟s bedroom to get the
marijuana and heard two gunshots. The appellant did not tell Thompson that anyone had
been shot. Thompson said the appellant knew marijuana was in Travierso, Jr.‟s bedroom
because Travierso, Jr., had told them on October 19 that “we can go in my bedroom and
do the deal.” Thompson said that a few days after the shooting, the appellant told him
that the victim had died. The appellant told Thompson that he was scared and that they
did not mean to kill the victim.

On cross-examination, Thompson acknowledged that he became a suspect in this
case and immediately told Detective Lyell about his alibi. He also acknowledged that
Travierso, Jr., trusted him and that he did not warn Travierso, Jr., about the robbery.
Thompson never saw Travierso, Jr., “flash money,” but Travierso, Jr., never hid the fact
that he was a marijuana dealer. When the appellant told Thompson about the robbery on
October 23, Thompson did not go to the police. He said that he did not contact them
because an indictment had been filed charging him with conspiracy to possess cocaine,
and he did not want to go to jail. After Thompson learned about the victim‟s death, he
texted Travierso, Jr., that “„I‟m sorry for your [loss].‟” However, he did not tell
Travierso, Jr., that the appellant was involved in the shooting. Thompson said he turned
himself in to the police when he learned he was a suspect in this case.

On redirect examination, Thompson testified that he turned himself in on October
31, 2011. The appellant did not go to the police but seemed remorseful to Thompson.

Twenty-four-year-old Paul Nathan Gerald testified that he and the appellant were
friends and that he had known the appellant for twenty years. About October 24, 2011,
the appellant came to Gerald‟s house and told him the following: On October 22, 2011,
Angela Warner drove William Forrester and the appellant to the Travierso home.
Forrester pushed open the door, and the two men went inside. The victim and Travierso,
Jr., were standing in the kitchen, and Forrester and the appellant ordered them onto the
floor. However, the victim “came at them,” so the appellant hit the victim and sprayed

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his face with pepper spray. The appellant then walked down the hallway and heard
gunshots. He ran back to the living room, and Forrester was gone. Gerald said that he
did not believe the appellant‟s story at first but that he later heard about the shooting on
the news. He said he did not know the Traviersos.

On cross-examination, Gerald acknowledged that the day before his testimony, he
talked with Casey Thompson in the hallway of the courthouse. He said that he was six
feet, four inches tall and that he did not tell anyone about the appellant‟s confession
because he did not think it was true. After he heard about the shooting on the news,
though, he “started to freak out a little bit.” Eventually, he told Detective Lyell what he
knew because he “didn‟t want to get in trouble for just knowing about it.”

Twenty-six-year-old Angela Warner testified that she dated the appellant‟s
brother, William Forrester; that she and Forrester used to be engaged; and that she pled
guilty in this case to conspiracy to commit second degree murder. Warner‟s guilty plea
hearing transcript, introduced into evidence at the appellant‟s trial, reflects that she
received a ten-year sentence. At Warner‟s guilty plea hearing, she told the trial court, “I
drove the car that held . . . the guys that entered the victim‟s home.” The trial court asked
at the hearing if Forrester and the appellant were in the car, and Warner answered yes.

On cross-examination, Warner testified that she had been told she would receive a
fifty-one-year sentence if she did not plead guilty and that she only pled guilty to avoid
that sentence. On redirect examination, Warner testified that she was not in the Travierso
house on the night of October 22 and did not know what happened.

The State recalled Detective Lyell, who acknowledged that the TBI Crime Lab
report listed several types of guns that could have fired a thirty-eight-caliber bullet,
including a revolver. He explained that when someone fired a revolver, the projectile
moved through the barrel of the gun, but the shell casing remained in the gun. Detective
Lyell did not find any shell casings at the crime scene and thought that a revolver was
used to shoot the victim. Detective Lyell interviewed the appellant a couple of weeks
after the shooting, and the appellant denied robbing anyone. Detective Lyell said he had
not mentioned a robbery to the appellant. The appellant claimed that he did not know
anything about the victim‟s death and that he did not know why he was being
interviewed. The appellant also claimed that he did not have any friends. However,
Detective Lyell had interviewed Paul Gerald and knew the appellant was lying. The
appellant claimed not to know Travierso, Jr. On cross-examination, Detective Lyell
acknowledged that he interviewed Forrester before he interviewed the appellant, that he
discussed the robbery with Forrester, and that the appellant could have learned about the
robbery from Forrester.

Dr. Bridget Eutenier of the Nashville Medical Examiner‟s Office testified as an
expert in forensic pathology. Dr. Eutenier said she did not perform the victim‟s autopsy

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but reviewed his autopsy report. According to the report, a bullet entered the left side of
the victim‟s abdomen under his twelfth rib and perforated the left side of his diaphragm.
The bullet lacerated his pancreas, stomach, liver, and the right side of his diaphragm
before exiting his torso. The bullet traveled left to right, downward, and slightly front to
back. The victim died on October 23, 2011, at 12:55 p.m. at Vanderbilt University
Medical Center.

Dr. Eutenier testified that in addition to the victim‟s bullet wound, he had a bruise
on his right eye. She described the bruise as a blunt force injury. Dr. Eutenier said that
she reviewed the victim‟s autopsy photographs and also noticed a contusion and abrasion
on the right side of his forehead. The victim‟s blood tested positive for
methamphetamine, marijuana, cocaine, morphine, and midazolam. The latter two drugs
were most likely products of resuscitation administered by medical personnel. No soot or
gunpowder was on the victim‟s skin or clothing. Dr. Eutenier said that the victim‟s cause
of death was a gunshot wound to the torso and that his manner of death was homicide.

Detective Lyell testified for the appellant that William Forrester was five feet, nine
inches tall. The appellant was six feet, one inch tall.

At the conclusion of Detective Lyell‟s testimony, the jury convicted the appellant
as charged of first degree felony murder, aggravated robbery, a Class B felony, and
aggravated burglary, a Class C felony. The trial court immediately sentenced him to life
in prison for the felony murder conviction. After a sentencing hearing, the trial court
sentenced him as a Range I, standard offender to eight years for the aggravated robbery
of Travierso, Jr., and three years for aggravated burglary and ordered that all of the
sentences be served concurrently.

II. Analysis

A. Sufficiency of the Evidence

The appellant claims that the evidence is insufficient to support his convictions,
arguing only that the evidence does not support the jury‟s verdicts. The State argues that
the evidence is sufficient. We agree with the State.

When an appellant challenges the sufficiency of the convicting evidence, the
standard for review by an appellate court is “whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443
U.S. 307, 319 (1979); Tenn. R. App. P. 13(e). The State is entitled to the strongest
legitimate view of the evidence and all reasonable or legitimate inferences which may be
drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions
concerning the credibility of witnesses and the weight and value to be afforded the

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evidence, as well as all factual issues raised by the evidence, are resolved by the trier of
fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This court will not reweigh or
reevaluate the evidence, nor will this court substitute its inferences drawn from the
circumstantial evidence for those inferences drawn by the jury. Id. Because a jury
conviction removes the presumption of innocence with which a defendant is initially
cloaked at trial and replaces it on appeal with one of guilt, a convicted defendant has the
burden of demonstrating to this court that the evidence is insufficient. State v. Tuggle,
639 S.W.2d 913, 914 (Tenn. 1982).

A guilty verdict can be based upon direct evidence, circumstantial evidence, or a
combination of direct and circumstantial evidence. State v. Hall, 976 S.W.2d 121, 140
(Tenn. 1998). “The jury decides the weight to be given to circumstantial evidence, and
„[t]he inferences to be drawn from such evidence, and the extent to which the
circumstances are consistent with guilt and inconsistent with innocence, are questions
primarily for the jury.‟” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting
Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958)). “The standard of review „is the
same whether the conviction is based upon direct or circumstantial evidence.‟” State v.
Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265,
275 (Tenn. 2009)).

As charged in this case, felony murder is defined as “[a] killing of another
committed in the perpetration of or attempt to perpetrate any . . . robbery[.]” Tenn. Code
Ann. § 39-13-202(a)(2). Aggravated robbery is a robbery accomplished with a deadly
weapon. Tenn. Code Ann. § 39-13-402(a)(1). Robbery is defined as “the intentional or
knowing theft of property from the person of another by violence or putting the person in
fear.” Tenn. Code Ann. § 39-13-401(a). A theft of property occurs when someone, with
the intent to deprive the owner of property, knowingly obtains or exercises control over
the property without the owner‟s effective consent. Tenn. Code Ann. § 39-14-103(a).
Aggravated burglary is burglary of a habitation. Tenn. Code Ann. § 39-14-403(a).
Burglary occurs when a person, without the effective consent of the property owner,
enters a building other than a habitation not open to the public with the intent to commit a
felony, theft, or assault. Tenn. Code. Ann. 39-14-402(a)(1).

“A person is criminally responsible as a party to an offense if the offense is
committed by the person‟s own conduct, by the conduct of another for which the person
is criminally responsible, or by both.” Tenn. Code Ann. § 39-11-401(a). Criminal
responsibility for the actions of another arises when the defendant, “[a]cting with intent to
promote or assist the commission of the offense, or to benefit in the proceeds or results of
the offense, . . . solicits, directs, aids, or attempts to aid another person to commit the
offense.” Tenn. Code Ann. § 39-11-402(2); State v. Lemacks, 996 S.W.2d 166, 170
(Tenn. 1999) (“As reflected in this case, criminal responsibility is not a separate, distinct
crime. It is solely a theory by which the State may prove the defendant‟s guilt of the
alleged offense . . . based upon the conduct of another person.”).

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 Taken in the light most favorable to the State, the evidence shows that on October
19, 2011, Casey Thompson and the appellant went to the Travierso home in order for the
appellant to buy marijuana from Travierso, Jr. Although the sale did not take place, the
appellant learned from the incident that Travierso, Jr., kept the marijuana in his bedroom
and told Thompson that he was going to rob Travierso, Jr. On the night of October 22,
2011, Warner drove the appellant and Forrester to the Travierso residence. Forrester and
the appellant entered the living room and demanded that the victim and Travierso, Jr., get
onto the floor. The victim refused, and the appellant sprayed him with pepper spray. The
appellant or Forrester also hit the victim on his head, knocking him down, and the
appellant went to Travierso, Jr.‟s bedroom and took marijuana out of the headboard of his
bed. Meanwhile, Forrester shot the victim in the abdomen. Soon after the crimes, the
appellant told Thompson and Paul Gerald about his involvement, and Warner later
admitted to driving Forrester and the appellant to the Travierso home on the night of
shooting. The evidence is more than sufficient to support the appellant‟s convictions.

B. Grand Jury Instructions

The appellant contends that the trial court committed reversible error by giving
grand jury instructions in the presence of the jury venire. The State argues that the
appellant has waived this issue by failing to make a contemporaneous objection and that
he is not entitled to plain error relief. We conclude that the appellant did not waive the
issue but that any error was harmless.

On the morning of jury selection, the trial court advised the jury venire that
“things aren‟t going smoothly.” The trial court told the potential jurors that the grand
jury was meeting at the end of the hall, that some of the grand jurors had been unable to
attend, and that “I‟m going to have to pick two of you - excuse me three of you . . . that
will take their place so the grand jury can proceed on.” The trial court stated that after it
picked the three grand jurors, it was going to release the remaining jury venire until noon.
The trial court apologized for the inconvenience, stated that “this is the least worst
alternative that we can come up with,” and announced that prospective jurors twenty-one,
twenty-seven, and five had been selected for the grand jury. The court told the two men
and one woman to take “any of these seats right here,” swore the three individuals, and
instructed them, in relevant part, as follows:

No person may be charged with a capital crime or a
felony [except] upon an indictment or a presentment by the
grand jury. The initial steps rest with the grand jury which is
an independent body though acting under the direction and
with the assistance of the Court. It is your duty to inquire
carefully to reports of all violations of law and to see that
those who willfully and defiantly break the law are brought to

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 trial.

....

You will hear only one side of the case. It is not your
duty to decide the guilt or innocence of the accused. It is
your duty to determine whether there is sufficient evidence or
probable cause to [require] an accused to stand trial. If the
evidence fails to establish a probability of guilt you must
refuse to return a true bill. Unjust or unfounded indictment[s]
should not be returned against anyone.

On the other hand it is equally important that
indictments be returned against those who upon the evidence
appear to be probably guilty of the commission of the crime.
You must be fair and just in your deliberation to the best of
your ability and understanding. You must be guided by an
impartial spirit free from personal, social, racial, religious or
political bias or favor.

....

When the testimony satisfies you members of the
grand jury that an offense has been committed and identifies
the offender, then you should report the offense by either
indictment or presentment.

....

Where twelve concur the foreman shall endorse the
words “A True Bill” upon the indictment or presentment. The
indictment or presentment with the endorsement of the action
of the grand jury by the foreman must be returned in the
presence of all grand jurors.

At the conclusion of the instructions, the court advised the three grand jurors to
“go into the jury room and have a seat, I‟ll send you down in just a few minutes.” The
trial court then continued as follows:

Now you ladies and gentlemen who are on the jury, I‟m going
to ask you, if you will, we‟re going to have some proceedings
in the case that is going to start when you come back at 12:00
but it is one of those out of hearing of the jury things; so I

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 need you to clear the courthouse. If you make plans to be
back here right at 12 o‟clock and come right back up here and
have a seat where you are now.

....

Ladies and gentlemen of the jury, you may be excused
at this time. Thank you.

The transcript reflects that the potential jurors left the courtroom and that the trial
court and counsel addressed other matters related to the trial. Finally, defense counsel
stated,

And I‟d like to make an addition[al] motion at this point, an
oral motion. I‟ll reduce it to writing. This will be the third
Motion to Strike the Venire and I don‟t believe the Court
Reporter was - I don‟t believe it was on the record when you
were charging the grand jurors; and I probably - if I had
thought about it, I‟d ask that the panel be excused; but I‟m
going to move to strike the venire because the Court in giving
the instruction and in a moment I‟m going to ask that the
instructions be made part of the record.

Part of the instruction tells the grand jurors, and I‟m
paraphrasing, that an [indictment means] that a person is
probably guilty; and we can look at the exact language; but
that has not been disseminated to the jury panel that an
indictment in and of itself means that a defendant is probably
guilt[y] because they heard you charge the grand jury that.

The trial court denied the motion and ordered a recess until after lunch. When court
resumed, voir dire began, and the petit jury was selected.

Both the United States and Tennessee Constitutions guarantee a criminal
defendant the right to a trial by an impartial jury. See U.S. Const. amend. VI; Tenn.
Const. art. I, § 9. “Jurors must render their verdict based only upon the evidence
introduced at trial, weighing the evidence in light of their own experience and
knowledge.” State v. Adams, 405 S.W.3d 641, 650 (Tenn. 2013). Moreover,

When a jury has been subjected to either extraneous
prejudicial information or an improper outside influence, the
validity of the verdict is questionable. . . . [E]xtraneous
prejudicial information is information in the form of either

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 fact or opinion that was not admitted into evidence but
nevertheless bears on a fact at issue in the case. An improper
outside influence is any unauthorized private communication,
contact, or tampering directly or indirectly, with a juror
during a trial about the matter pending before the jury.

Id. at 650-51 (internal citations and quotations omitted). The party challenging the
validity of the verdict must show that the jurors were exposed to extraneous prejudicial
information or improper outside influence. Id. at 651. As our supreme court has
explained,

[O]nce the challenging party has made the initial showing that
the jury was exposed to extraneous prejudicial information or
an improper outside influence, a rebuttable presumption of
prejudice arises and the burden shifts to the State to introduce
admissible evidence to explain the conduct or demonstrate
that it was harmless.

Id.

The State notes that the appellant has failed to cite any cases standing for the
proposition that the jury venire‟s presence during a grand jury charge regarding an
unrelated case warrants reversal and states that “[n]or has the State discovered such a
case.” However, the State cites Harris v. State, 534 S.W.2d 868 (Tenn. Crim. App.
1975), as “[t]he closest opinion on the subject.” In Harris, the defendant, who was on
trial for possession of marijuana for resale, argued that the trial court erred by refusing to
dismiss the petit jury when another trial judge instructed the grand jury, in the presence of
the petit jury, “rather forcefully on the subject of drug offenses.” 534 S.W.2d at 871.
This court found that the defendant was not entitled to relief because “[n]o prejudice was
developed on voir dire, none has been documented post-trial, and the defendant took the
jury with peremptory challenges left.” Id.

Although we have been unable to find any Tennessee cases on point, cases in
other jurisdictions are helpful. In Gordon v. United States, 384 F.2d 598, 599 (8th Cir.
1967), the record established that the trial court instructed the grand jury in the presence
of “at least a substantial number of the petit jurors.” During the instructions, the court
stated that “„you ought not return an indictment unless the accused is guilty.‟” 384 F.2d
at 600. Defense counsel challenged the jury panel, and the trial court immediately gave a
curative instruction, telling the petit jurors that “the instructions given were for the grand
jury alone and that the court did not intend to create any impression that it is necessary to
convict any person indicted and that if the jurors got such impression, to strike it out of
their minds completely.” Id. The court also instructed the petit jury at the close of the
evidence regarding the State‟s burden of proof, that “„the indictment constitutes no

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evidence of any character in this case against the defendant,‟” and that the jury was not to
consider the indictment during deliberations of the defendant‟s guilt. Id.

On appeal, the Eight Circuit concluded that the trial court‟s instructing the grand
jury in the presence of the petit jury did not constitute error per se. Id. The court also
concluded that the defendant had failed to show prejudicial error because defense counsel
“admitted that he was afforded a full opportunity to examine the individual jurors and
that he made no attempt to ascertain from the jurors the effect, if any, of the grand jury
instructions upon them.” Id. The court noted that the problem could have been avoided
by excluding the petit jury from the courtroom during the instructions but stated that the
grand jury instructions were “entirely proper and when fairly considered as a whole, they
do not afford any reasonable basis for creating an impression that an indictment should be
given any weight in determining the guilt or innocence of a defendant.” Id. Further, the
appellate court found that the trial court took “prompt action” to cure the error and that
the final jury instructions eliminated any reasonable possibility that the defendant was
denied his right to a fair trial. Id. at 601.

Similarly, in State v. Beaulieu, 290 A.2d 850, 851-52 (R.I. 1972), the trial court
instructed the grand jury, in the presence of some of the petit jurors, that “„[t]o justify the
finding of an indictment you must be convinced, so far as the evidence before you goes,
that the accused is guilty. You ought not to find an indictment unless, in your judgment,
the evidence before you, unexplained and uncontradicted, would warrant conviction by a
petit jury.‟” On appeal, the defendant argued that the court‟s instruction “makes an
indictment synonymous with guilt” and tainted his presumption of innocence. Id. at 852.
In concluding that the trial court properly denied the defendant‟s motion to “pass the
case,” the Rhode Island Supreme Court stated,

It is highly doubtful, in our judgment, that the petit
jurors who heard the trial justice‟s instructions to the grand
jury could have been misled by the isolated [language] which
defendant has culled from those instructions. And even in the
unlikely event that those jurors might have been confused, we
think that the confusion was resolved by the trial justice‟s
subsequent instructions to the defendant‟s petit jury. In that
charge he explained that an indictment has no evidentiary
value for either the state or the defendant and emphasized that
the presumption of innocence, notwithstanding a prior
indictment, remained with defendant until the state
established that he was guilty of the offense charged beyond a
reasonable doubt. It seems [abundantly] clear, and we now
hold, that any potential for prejudice inhering in the grand
jury instructions was completely dissipated by the trial
justice‟s charge to the petit jury.

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Id.

In another Eighth Circuit case, United States v. Harper, 466 F.3d 634, 641 (Eighth
Cir. 2006), the trial court stated to potential jurors during voir dire that “„there is probable
cause or an indictment wouldn‟t be returned‟” and that “„an indictment is merely a formal
legal proceeding but it‟s based upon probable cause that the crimes have been committed
and somehow the defendant is involved with it.‟” However, the court also stated that the
indictment was not an indication of guilt and asked if the prospective jurors could still be
fair and impartial. 466 F.3d at 641. One potential juror indicated that he could not be
fair, defense counsel challenged him for cause, and the court excused him from the panel.
Id. After jury selection, the court instructed the petit jury that the indictment was “simply
an accusation,” that the defendant was presumed innocent until proven guilty beyond a
reasonable doubt, and that the jury was to decide the defendant‟s guilt based on the
evidence presented. Id. at 642. Moreover, during the final jury charge, the court
reiterated that the indictment was “simply an accusation” and “not evidence of anything”
and that the government had to prove its case beyond a reasonable doubt based on the
evidence presented at trial. Id.

On appeal, the defendant argued that the trial court‟s statements to the jury venire
regarding probable cause and the indictment “divested him of the presumption of
innocence.” Id. at 645. Reviewing the issue for plain error because the defendant failed
to object at trial, the appellate court noted that the trial court‟s statements regarding
probable cause were correct statements of the law. Id. at 644. However, the court
expressed concern in that the statements “came from the judge, the most authoritative
figure in the courtroom.” Id. at 646. Nevertheless, the appellate court refused to grant
plain error relief, stating that the jurors were presumed to follow the instructions of the
trial court and that “any ambiguity or prejudice that resulted from the district court‟s
statements was remedied when the court excused for cause the relevant panel member
and proceeded to twice correctly instruct the jury on the presumption of innocence, that
an indictment is not evidence and the government‟s burden of proof.” Id. at 647.

Turning to the instant case, we will first address the State‟s argument that the
appellant has waived this issue because he failed to make a contemporaneous objection.
Although defense counsel did not immediately object to the court‟s instructing the grand
jurors in the presence of the jury venire, he objected shortly thereafter and well-before
voir dire began. Therefore, counsel objected in time for the trial court to take notice of
any error and take the action necessary to correct the error. See Tenn. R. Crim. P. 36(a).
Thus, we conclude that the appellant has not waived the issue.

We also conclude that the appellant has failed to show that the jurors were
exposed to extraneous prejudicial information that bore on a fact at issue in the case.
Defense counsel did not question the potential jurors during voir dire as to whether any of

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them heard the grand jury instructions. In any event, during the trial court‟s preliminary
instructions to the petit jury, it stated that “[t]he indictment is not any evidence of guilt. It
is just the formal way that the state tells the defendant what crime he is accused of
committing. It does not even raise any suspicion of guilt.” The court further instructed
the jury that the appellant was presumed innocent unless the State presented evidence to
overcome that presumption and “convinces you beyond a reasonable doubt that he is
guilty.” During the final jury charge, the trial court again instructed the jury that the
appellant was presumed innocent and that the presumption was not overcome “unless
from all of the evidence in the case you are convinced beyond a reasonable doubt that the
defendant is guilty.” The trial court stated throughout the final charge that in order to
find the appellant guilty of any of the indicted or lesser-included offenses, the jury had to
do so beyond a reasonable doubt. Generally, we presume that a jury has followed the
trial court‟s instructions. See State v. Butler, 880 S.W.2d 395, 399 (Tenn. Crim. App.
1994). Thus, while not condoning the trial court‟s instructing the grand jurors in the
presence of the jury venire, we conclude that any error was harmless. See Tenn. R. App.
P. 36(b).

C. Appellant‟s Absence During Video

Finally, the appellant contends that the trial court committed reversible error by
allowing the deliberating jury to view a video in the courtroom without his being present.
As in the previous issue, the State argues that the appellant has waived this issue because
he failed to make a contemporaneous objection and that any error does not rise to the
level of plain error. Again, we conclude that the appellant did not waive the issue but
that any error was harmless.

The record reflects that after the jury retired from the courtroom to deliberate, the
trial court and the attorneys discussed the jury‟s returning to the courtroom to watch a
video played during the trial.2 During the discussion, defense counsel stated that “the
more I think about it I‟m going to object to this procedure of having counsel in the
presence of the jury when they are looking at it.” Defense counsel suggested that “we
somehow get a redacted version of that” and let the jury play the redacted video on a
laptop computer in the jury room. The trial court stated that “it‟s not going to happen”
and that “just bring the jury into open court and let them look at it.” The court also
stated, “If they come in open court to watch it, counsel can leave.”

The record reflects that the jury entered the courtroom but does not reflect that
counsel left the courtroom. The trial court then addressed the jury as follows:
2
Although the trial court did not identify the video at issue, the only video played for the jury
during the trial was a recording of the appellant‟s interview with Detective Lyell. The video was marked
as exhibit seventeen but was not published to the jury, and the State advised the trial court that “[i]t needs
to be viewed in the courtroom, Your Honor.” During oral arguments, appellate counsel confirmed that
the video at issue was the appellant‟s interview. We note that the video is not in the appellate record.

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 All right, ladies and gentlemen, according to your request we
have cleared out as many of the personnel as I can legally do;
and I understand your complaint about the roaring of the
speakers but this is the absolute best we can do. We tried to
put it on the other speakers and that didn‟t work.

I want you to remember that the people working the
sound system went to law school. Okay. So we have no
experts here. Of course, the sound is coming out of that
speaker right there but if you want to get up and look, you
know, get closer or, you know, kind of roam around that‟s
okay. Either get up and stand near one of the speaker[s] or
whatever you want to do because once we start the tape here
nobody is going to say anything, the lawyers, me, anybody
else.

Now if you want it to go back a little bit or something
like that, if you‟ll just raise your hand and say go back a little
bit, we‟ll try to do that. We‟ll try to play it over as many
times as you want; but if you want to discuss it, stop, go back
in the jury room.

The jury watched the video. At one point, one of the jurors requested that a
portion of the video be replayed “just a little bit to hear what he said about whose name
that was[.]” The requested portion of the video was replayed, and the jury returned to the
jury room to continue its deliberations. At that point, defense counsel stated,

Your Honor, before we just went through this process
we talked about allowing the jury to come in and watch a
video that was in evidence and I object to that being done in
the presence of counsel and in the absence of the defendant
and the Court overruled my objection. I just wanted to put it
on the record.

The court stated that the jury had been brought into the courtroom “for the purpose of
watching the video only” and that “[n]o . . . . proceedings were done[.]” The court
overruled counsel‟s objection.

The appellant contends that allowing the jury to view the video without his being
present constitutes reversible error. A defendant has a fundamental right to be present
during his or her trial. State v. Muse, 967 S.W.2d 764, 766 (Tenn. 1998) (citing U.S.
Const. amends. V, VI, XIV; Tenn. Const. art. I, § 9). “For example, under the

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Confrontation Clause, a defendant has the right to be present in order to confront
witnesses and evidence against him.” Matthew L. Moates v. State, No. E2003-01926-
CCA-R3-PC, 2004 WL 1196085, at *9 (Tenn. Crim. App. at Knoxville, May 27, 2004)
(citing United States v. Gagnon, 470 U.S. 522, 526 (1985)). Pursuant to the Due Process
Clause, “a defendant has a right to be present „whenever his presence has a relation,
reasonably substantial, to the fullness of his opportunity to defend against the charge.‟”
Id. (quoting Gagnon, 470 U.S. at 527) (additional internal quotations and citations
omitted). Moreover, Rule 43(a), Tennessee Rules of Criminal Procedure, provides that
“the defendant shall be present at . . . every stage of the trial, including the impaneling of
the jury and the return of the verdict[.]”

Our supreme court has concluded that a defendant‟s being absent from the entire
jury selection or the entire trial required automatic reversal. State v. Ballard, 21 S.W.3d
258, 262 (Tenn. Crim. App. 2000) (trial); State v. Muse, 967 S.W.2d 764, 766 (Tenn.
1998) (jury selection). Likewise, automatic reversal is required when a defendant is
absent from almost all of jury selection. Robert Charles Taylor v. State, No. E2012-
01625-CCA-R3-PC, 2013 WL 6797398, at *14 (Tenn. Crim. App. at Knoxville, Dec. 20,
2013). On the other hand, this court has held that any error regarding a defendant‟s being
absent from jury selection for a short period of time was harmless. Curtis v. State, 909
S.W.2d 465, 469-70 (Tenn. Crim. App. 1995). In State v. Michael Lewis, W2002-0321-
CCA-R3-CD, 2003 WL 1697689, at *6 (Tenn. Crim. App. at Jackson, Mar. 26, 2003),
this court held that the trial court‟s conducting an ex parte proceeding at the conclusion of
the first day of trial when neither the defendant nor his attorney were present did not
result in prejudice to the defendant or the judicial process.

Turning to the instant case, we initially note that the State argues that the appellant
has waived this issue because defense counsel did not object to the appellant‟s absence
until after the jury viewed the video. Our careful review of the trial transcript reveals that
prior to viewing the video, defense counsel objected to the jury‟s viewing the video with
counsel present. Defense counsel did not mention the appellant. After the jury viewed
the video, though, defense counsel “put it on the record” that he objected to the jury‟s
viewing the video in the appellant‟s absence. Therefore, we can appreciate the State‟s
argument that the issue has been waived. See Tenn. R. App. P. 36(a). However, this
court has refused to conclude that a defendant waived his right to be present when the
defendant failed to object to the State‟s moving to have him removed from the courtroom
and the record did not reflect that the defendant personally waived his right to be present.
See State v. Tommy Earl Jones, No. M2010-00976-CCA-R3-CD, 2011 WL 1631832, *8-
9 (Tenn. Crim. App. at Nashville, Apr. 19, 2011), perm. to appeal denied, (Tenn. 2014).
The appellant did not personally waive his right to be present in this case. Thus, we
conclude that he has not waived the issue.

The State contends that the appellant is not entitled to relief because his absence
did not substantially impair his defense. In support of its claim, the State cites Michael

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Lewis. However, the appellant‟s absence here is quite distinguishable from the
defendant‟s absence from the ex parte proceeding in Lewis. In the instant case, the
appellant was absent while the jury was present in the courtroom, the court addressed the
jury, and the jury reviewed the appellant‟s recorded statement to a police officer.

Ideally, “the jury shall take to the jury room for examination during deliberations
all exhibits and writings, except depositions, that have been received in evidence.” Tenn.
R. Crim. P. 30.1. Moreover, regardless of whether the jury reviews the evidence in the
jury room or the courtroom, it should do so in private. See State v. Lemaricus Devall
Davidson, No. E2013-00394-CCA-R3-DD, 2015 WL 1087126, at *46 (Tenn. Crim. App.
at Knoxville, Mar. 10, 2015). In this case, where the jury room was not equipped to play
the video, the better practice would have been for the court officer to bring the jury into
the courtroom without the presence of the judge or counsel. However, if the jury must
review the evidence in the courtroom in the presence of the trial court and counsel, then
we believe that the defendant also should be present. Under those circumstances, the
jury‟s review of the evidence, particularly if the trial court communicates with the jury,
may become a critical stage of the proceedings. See State v. Michael J. Haynes, No.
106,850, 2013 WL 3970167, at *6 (Kan. App., Aug. 2, 2013). In any event, the appellant
was present when the jury viewed the video during the State‟s case. Further, when the
jury viewed the video during deliberations, the proof in the case had closed and defense
counsel was present. The appellant‟s absence from the overall trial was brief, he makes
no allegation of prejudice, and nothing indicates that his absence had any effect on the
outcome of his case. Therefore, we conclude that any error was harmless.

III. Conclusion

Based upon the oral arguments, the record, and the parties‟ briefs, we affirm the
judgments of the trial court.

_________________________________
NORMA MCGEE OGLE, JUDGE

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