IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
MARCH SESSION , 1998 October 12, 1998
Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk
C.C.A. NO. 01C01-9706-CR-00223
)
Appellee, )
)
) DAVIDSON COUNTY
VS. )
) HON . SETH N ORM AN
RACHEL MARIE GREEN, ) JUDGE
)
Appe llant. ) (Facilitation of Second Degree Murder;
) Facilitation of Attempted Second Degree
) Murder)
ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF DAVIDSON COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
JEFF REY A. De VAS HER (on ap peal) JOHN KNOX WALKUP
Assistant Public Defender Attorney General & Reporter
W END Y S. T UCK ER (a t trial) KATHY MORANTE
Assistant Public Defender Assistant Attorney General
425 5th Avenu e North
KAR L F. D EAN (at trial) Nashville, TN 37243
Metro Public Defender
VICTOR S. JOHNSON
1202 Stahlman Building District Attorney General
Nashville, TN 37201
STEVE DOZIER
Assistant District Attorney General
Washington Square, Suite 500
222-2n d Aven ue No rth
Nashville, TN 37201-1649
OPINION FILED ________________________
REVERSED; CONVICTIONS VACATED
DAVID H. WELLES, JUDGE
OPINION
The Defendant, Rachel Marie Gree n, app eals a s of righ t pursu ant to R ule
3 of the Tennessee Rules of Appellate Procedu re. She was convicted by a
Davidson Coun ty jury of facilitation of second degree murder and facilitation of
attempted second degree m urder. 1 The trial court sentenced her as a Range I
standard offender to con current terms of ten years imprisonment for facilitation
of second degree murder and five years imprisonment for facilitation of attempted
second degree murder. In this appeal, the Defendant raises the following seven
issues for our consideration:
(1) that the trial court erred in denying the motion to suppress her
statement to police;
(2) that the trial court erred in effectively denying her motion for a bill
of particulars;
(3) that the evidence was legally insufficient to support the verdicts;
(4) that the trial court erred in den ying her reque st for a jury
instruction on the d efense of ne cessity;
(5) that the trial cou rt erred in reassembling the jury to repo rt guilty
verdicts after the jury had initially reported verdicts of not guilty;
(6) that the trial court erred in denying her motion for a mistrial due
to the manner in which the verdicts were received; and
(7) that the trial court erred in cha rging the jury with resp ect to
release eligibility pursuant to Tennessee Code Annotated § 40-35-
201(b)(2).
After reviewing the record and the thorough briefs submitted by both the
Defendant and the State, we conclude the “not guilty” verdict as announced by
the jury could not later be a ltered after discharge of the jury and after its
separation from the trial court to such a degree that outside contacts may have
been had. A lthoug h it is unfo rtunate that this result may ha ve been contrary to
the apparent inten tions of the jury, our law unquestionably disallows an alteration
of the verdict under the unique circumstances of this case. Although no other
1
Tenn. Code Ann. §§ 39-11-403, 39-13-210, 39-12-101.
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issues raised by the Defendant have merit, we must reverse the judgment of the
trial court and vacate the convictions.
We begin with a brief summary of the pertin ent facts. On the morning of
May 17, 1996, Detective Tim Mason received a telephone call from an individual
with information conc erning the wh ereab outs o f two pe ople allegedly wanted by
the police. Those two people, Jeffrey Swafford and the Defen dant, were sa id to
be located a t the River Retreat Apartments in Nashville. According to the
individual placing the teleph one call, Swafford and the Defendant were packing
and preparin g to leave town. After the telephone call, Detective Mason verified
that Swafford and the Defendant had outstanding warrants by running a
computer check. He the n ask ed De tective D avid M iller to ac com pany h im to the
River Retreat Apartments to serve the warrants. They arrived at the apartment
complex at approximately 9:00 that morning.
Upon arrival, they noticed that O fficer Paul Scurry was already at the
scene. They spo ke briefly with members of the management of the apartment
complex, who assured the officers that the unit leased by the Defendant was
occupied at that tim e. The officers then k nock ed on the do or to the Defe ndan t’s
apartm ent. After receiving no answer to their knocks, they obtained keys to the
apartment from the complex management. Officer Scurry attempte d to unlock
the door, bu t the officers w ere una ble to ope n it. At this poin t, Scotty Brandon,
the maintenance supervisor for the complex, began kicking the door in an attempt
to enter the apa rtment. Shortly after Brand on began kicking the doo r, they heard
a fema le voice — the Defe ndan t’s — call out from inside the apartm ent, “W ho is
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it?” By this time, approximately two to three minutes had passed since O fficer
Scurry first knocke d on the doo r.
In response to the Defendant’s question, Officer Scurry informed her that
he was a police officer. The Defendant called out asking to know what he
wanted. Officer Scurry then informed her that he had arre st warran ts for both her
and Jeffrey Swafford. The Defendant responded that she was in bed and needed
to get dres sed. Officer Scurr y told her to d o so qu ickly. Appro ximately tw o to
three more minu tes pa ssed , at whic h poin t the offic ers again began to kick the
door to the apartment. During the two to three minute wait, Kim Garner, the
occupant of the apartment adjacent to the Defendant’s, heard shuffling noises
coming from the Defendant’s bedroom, as if things were being move d. Sho rtly
thereafter, the Defendant removed a chair which was propped underneath the
door handle and opened the door to the apartmen t. She was take n into custody,
handcuffed, and seated in a chair in the living room of the apartmen t while the
officers checked the remaining rooms for Swafford.
During this time, Detective Mason asked the Defendant if Swafford was
there, acciden tally referring to him as “J immy” rather tha n “Jeffrey.” The
Defendant responded that she did not know “Jimmy Swafford.” Detective Mason
corrected himself, but the Defendant maintained that there was no one else in the
apartm ent. The officers so on discove red an attic a ccess in the ceiling o f a
bedroom closet . A she lf in the closet was broken and there was insulation on the
clothing, leading the officers to suspect that someone had climbed into the attic
recently. The ceiling was eight feet tall and the re was n othing in th e imm ediate
area to use to gain access to the attic. As a result, the officers asked the
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maintenance workers from the apartment com plex to bring them a ladder.
Detective Mason continued his c onversation w ith the Defend ant, telling her, “that
we felt like [Swafford] was up there ; that we did n’t want an ybody hu rt; if he had
any weap ons, s he ne eded to tell us; tha t we did n’t wan t him h urt; we didn’t want
her hurt; we didn’t wa nt us h urt.” Th e Def enda nt app eared calm and s imply
continue d to den y that anyo ne else w as pres ent in the a partme nt.
At this point, Detective Miller exited the apartment and circled around to the
other side of the buildin g in case Swafford attemp ted to escape through another
apartm ent. Officer Joe Brogdon replaced Detective Miller at the closet, waiting
with Officer Scurry for the lad der. Once they had the ladder, Officer Scurry called
up into the attic for anyone up there to come down. He received no response.
Officer Scurry clim bed into the attic and soon called down to Officer Brogdon that
he had located S wafford. Officer Brogdon then climbed into the attic. He
observed Swafford, ten to twelve feet away from the officers. Swafford spoke to
the officers in what Brogdon described as a “jerk voice,” repeatedly telling them
to “shoot me in the head, shoot me in the chest.” Officer Brogdo n did not have
his weapo n drawn but could not tell if Officer Scurry had his weapon drawn.
Scurry was talking to Swafford, ordering him to show his hands and to come
forward. Brogdon looked down to adjust his footing on the beams in the attic, at
which time g unfire e rupted . Brog don w as hit by a gunshot and fell back through
the attic access.
Once the gunfire erupted, Detective Mason led the Defendant outside the
apartm ent, where they took refuge behind a car. Detective Miller soon circled
around from the other side of the building and joined them behind the car. Officer
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Brogdon emerged from the apartment, helped by Scotty Brandon, the complex
maintenance supervisor. Detective Miller asked the Defendant how many guns
Swafford had. She replied that he had two handguns, a .380 and a 9 millimeter.
She was then secured in a patrol car and transported to police headquarters.
During her transport, the Defendant quietly sat in the back of the patrol car and
did not ap pear to b e upse t.
After the dep arture of the Defendant, numerous officers arrived on the
scene. Officers e ntered th e apartm ent on se veral occ asions in an attem pt to
rescue Office r Scur ry, but w ere tur ned b ack b y gunfir e. The y were eventu ally
able to confront Swafford in a bedroom of the apartment. Swafford was shot and
killed during the confrontation. Officers then located Scu rry in the attic. Scurry
had no pulse and was n ot breathing. Th ey attempted to revive Scurry but we re
unsu cces sful. Scurry was later pronounced dead, having suffered seven gunshot
wounds.
At trial, the State also offered the testimony of Casey Lawson, an
acquaintance of the De fendan t. Lawson was the individual who c alled Detective
Mason on the morning of the shooting to inform him of the whereabouts of
Swafford and the Defe ndant. Prior to his conversation with police, Lawson spoke
with the Defendant on numerous occasions. According to Lawson, the
Defendant had stated that “she just wasn’t going easy” if the police attempted to
serve the outsta nding warran ts on her.
The State also offered proof concerning an incident which occurred on May
16, 1996, the day before the shooting at the Defendant’s apartment. On May 16,
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Officer John N icholson attemp ted to serv e outstan ding wa rrants on the
Defendant and Sw afford at a Sonic re stauran t. Officer Nicholson approached a
car at th e resta urant. S waffor d was in the d river’s seat and the Defendant was
in the passenger’s seat. Upon questioning, Swafford gave Nicholson a false
name. Nicholson eventually frisked Swafford and found marijuana. As a result,
Nicholson ordered Swafford back to the patrol car. Swafford, however, fled the
scene with N icholson in pursuit. Swafford escaped after a short chase, and
Nicholson returned to the scene of the attempted arrest. As he returned, he
observed the Defendant fleeing by car, driving over a concrete island in the
process.
Finally, the State offered a statement made by the Defendant to police after
the shooting. As the shooting began, the Defendant was transported to police
headquarters. Once there , she was interviewe d by Detective K ent McAlister.
During the interview , the Defe ndant s poke b riefly about the May 16 Sonic
incident. She re coun ted es sentia lly the sa me e vents a s Office r Nich olson. In
explaining why she fled the scene, she stated that she was not supposed to be
with Swafford because of an order of protection she had previously secured
against him. She did admit, however, that approximately one hour after she fled
the Sonic, she beeped Swafford and thereafter picked him up not far from the
scene.
In her statem ent, the De fendant also recounted essentially the same
course of events leading up to the eruption of gun fire at her apartment as testified
to by the police officers on the scene. She awoke on the morning of May 17 to
the sound of someone attempting to kick in her door. She asked who was there
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and was informed that it was the police. She asked them to wait while she
dressed herse lf. Durin g this time, she told Swafford to hide in the attic and stated
that she would tell the police that he was not there. The Defe ndan t mad e this
decision beca use S waffor d had previo usly told her “that if they [the police] come
in on him like that again that he would shoot.” She then opened the door and
was taken into custody by the police. They asked her if “Jimmy” was there, and
she replied tha t she did n ot know “Jimm y.” Upon further questioning, she told the
officers that no one else was in the apartment. She admitted that she did not
inform the officers of the possibility that Swafford was armed or of his prior
statem ents of what he would do if confronted by police office rs attem pting to
arrest him. She maintained, however, that she was never asked those questions
directly. Once the gunfire erupted, she was escorted out of the apartment and
transported to police headquarters.
At the close of the State’s case-in-chief, the Defendant offered proof in her
defense. The principal proof offered was her own testimony. The Defendant,
twenty-one years old at the tim e of trial, b egan a relatio nship with Sw afford in
1994. She had known him for some time prior to beginning the relationsh ip. In
1995, the relationship became violent, beginning with verbal abuse and
escalating to physical abuse. According to the Defendant, Swafford at times
grabbed her hair, grabbed her throat, threw her to the floor, struck her face, and
hit her with a handgun; and he even raped her in October of 1995. The
Defe ndan t’s mother learned of the abuse and called the police. The Defendant
initially refused to press c harges becau se she was sca red of Swafford. In
January of 1996, however, she obtained an order of protection and a warrant for
Swa fford’s arrest based on telephon e harassment. She informed the police of
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Swafford’s whereabouts so that they could serve the warrant. At that time, she
told the police that Swafford might have weapons, that he was violent, and that
he wou ld not be e asy to arre st.
A short time after Swafford’s arrest, the Defendant discovered he was out
of prison. She called the p rison authorities, but they m aintained that Sw afford
was still incarcerated. Swaffo rd eve ntually d rove b y the D efend ant’s m other’s
home and threatened to kill them all. The Defendant called authorities in an
attempt to have the order of protection enforced, but they maintained that
Swafford was still in prison. The threats prompted the Defendant, in March of
1996, to move in to River Retreat Apartments with a longtime friend, Amy Tayse.
The Defendant hoped to evade Swafford by moving.
In spite of the move, Swafford located th e Defe ndant a nd beg an attem pts
to contact her, eventually showing up at her front door. At that point, the
Defendant “tolerated” Swafford. The Defendant testified that Swafford “was the
type of person that you just couldn ’t get rid of. He wouldn ’t — if he had his mind
made up, there wasn’t much you could do.” She admitted that she still had
feelings for Swafford but that their relationship was far from normal. She
described their relation ship at this point as “[a ] lot of drugs , a lot of gun s.”
Swafford was frequently under the influence of narcotics and often spoke of how
he wou ld kill the De fendan t and then kill himself.
She described the May 16 Sonic incident in much the same way as Officer
Nicholson. After Swafford fled from Officer Nicholson, the Defen dant m oved into
the driver’s seat an d drove a way from the scen e. Acco rding to the Defen dant,
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she fled the scene because she “didn’t want to have any part of having [Swafford]
go back to jail.” After h is relea se from jail in ear ly 1996, Swafford had threatened
that if the Defenda nt ever had him sent back to jail, he wo uld kill her.
With regard to her actions on the day of the shooting at her apartment, the
Defendant admitted that she told the police that no one else was present in her
apartm ent. The D efenda nt testified tha t she did so out of fear of Swafford.
According to the Defendant, when the police knoc ked o n her d oor, S waffor d held
a gun to her head and threatened to kill her if she revealed that he was there.
She told Swafford to hide in the attic. She assured him she would not tell the
police that he w as there . She then went to the living room and told the police that
she needed to put on clothes. When she returned to the bedroom, Swafford was
already most of the way into the attic. She did not know how he had been able
to get into the attic, nor did she see him carrying a gun into the attic. She
returned to the living roo m and opene d the fron t door, a t which time she was
taken into custody . In respon se to questioning, she told the police officers that
there was no one else in the apartment because, even though she was
surrounded by police officers, she still feared Swafford and the threats he had
made against her. Once gunfire erupted, she was escorted out of the apartment
and transported to police headquarters where she made a statement. During the
statem ent, she did n ot men tion the rec ent threa ts made against her by Swa fford
because she was afraid of him and what he might do to her if he thought she was
responsible for his capture.
On cross examination, the Defendant admitted Swafford had told her that
he would shoot if police officers attempted to arrest him. She also admitted that
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she believed Swafford was “crazy” enough to do so. Although she maintained
that she d id not a ctually see Swafford take a gun into the attic, she testified that
she knew it was probable that he had.
To corroborate her testimony about the ab usive n ature o f her rela tionsh ip
with Swafford , the Defe ndant o ffered the testimon y of Officer Steve Ray,
Detective Mike McCarty, and Amy Tayse. Officer Ray testified that he learned
of an alle gation of abuse from the Defendant’s mother in October of 1995. He
met with the Defendant and her mother at the Defendant’s mother’s home. Ray
stated that most of the information concerning the abuse came from the
Defe ndan t’s mother, while the Defendant said only that Swafford had not hit her
hard. Officer Ray testified that the Defendant did not want to prosecute Swafford.
Detective Mike McCarty testified that he spoke with the Defenda nt on Janua ry 23,
1996, about abuse perpetrated by Swafford . As a result of this conversation, the
Defendant obtained an order of protection and a warrant a gainst Swafford for
telephone harassment. The Defendant assisted in the arrest of Swafford by
revealing his location, and she warned the officers that Swafford might be armed.
Both Officer Ray and Detective McCarty testified that the Defendant made no
allegation that Sw afford had eve r raped her.
Amy Tayse, a longtime friend of the Defendant, corroborated the
Defe ndan t’s testimony concerning how Swafford contacted the Defendant
following his release from the January 1 996 arrest. Ta yse and the Defendant
moved into the River Retreat Apartments together in March of 1996. They
attempted to avoid Swafford but to no avail. Swafford began to come to their
apartment more often, prompting Tayse to move out two weeks before the
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shooting. Tayse testified that she did not like Swafford’s attitude and did not like
the Defendant’s attitude when she was around Swafford.
Tayse also testified conc erning an inc ident th at occ urred in the autumn of
1995. She recounted being called by the Defendant to a party a t Swa fford’s
sister’s home. Once there, they told Swafford that they were going to leave, but
Swafford refused to allow the Defenda nt to do so. Swa fford threw the Defendant
down on a bed in the home and Tayse left the room. She could hear the
Defendant screaming after she left. Swafford emerg ed from the room thirty to
forty-five minutes later with a smirk on his face. When Tayse entered the room,
the Defendant was flushed and ha d on no shirt. The buttons of the shirt she had
previous ly been w earing h ad bee n torn off.
The Defe ndan t was in dicted for facilitation of the first degree murder of
Officer Scurry and for facilitation of the attempted first degree murder of Officer
Brogdon. She was tried from March 10 to March 14, 1997. After considering the
proof presented at trial, the jury initially repo rted not g uilty verdicts o n both
counts, but was later re assem bled an d found the Defe ndant g uilty of the lesser
offenses of facilitation of second degree murder and facilitation of attempted
secon d degre e murd er. She n ow app eals to this C ourt.
In her first issue on appeal, the Defendant argues that the trial court erred
in denyin g the m otion to supp ress h er state men t to polic e. The Defe ndan t’s
argument focuses on the failure of Detective McAlister to inform her of the crimes
she was suspected of having committed. She contends that her lack of
knowledge of the suspected crimes rendered her Miranda waiver involuntary.
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Thus, she argues that her statement was admitted at trial in violation of her right
against self-incrim ination an d her righ t to couns el. See U.S. Const. amend. V;
U.S. Const. amend. VI; Tenn. Const. art. I, § 9.
Prior to trial, the De fendan t filed a mo tion to suppress her statement. The
trial court conducted a hearing on the motion to suppress on December 18, 1996.
The only witnes s to testify at tha t hearing was D etective McAlister. McAlister
testified that he responded to the scene of the shooting between 10:00 and 10:30
a.m. He received the assignment of taking an apartment mainte nance worker to
police headquarters for an interview. After that interview, he interviewed the
Defen dant. Prior to interviewing the Defendant, McAlister’s knowledge of the
shooting incident consisted on ly of knowing that officers had attem pted to serve
warran ts at the scene, gunshots had been exchanged, and one officer had been
taken to the hosp ital. McA lister wa s told to interview the Defendant, that she was
in the apa rtment w hen the gunfire eru pted, an d that she had ou tstandin g
warrants. McAlister requested the Defe ndant to execute a Miranda waiver form
because she was under arrest on the outstanding warrants . The Defendant
signed the Miranda waiver form and proceeded to give the statement which was
subs eque ntly introduced at her trial. At no time d id Detective McAlister inform the
Defendant that she was suspected of facilitating Swafford’s sho oting of Officers
Scurry and Brog don. In fact, it appears th at Detective Mc Alister, given his limited
knowledge of wha t had tra nspire d at the Defe ndan t’s apa rtmen t, was a ctually
unaware of the Defendant’s precise relationship to the shooting. McAlister did
testify that an investigator with the District Attorney General’s office was present
during the interview and had more information about the shooting than he d id.
The extent of this investigator’s knowledge of the shooting, however, is unknown.
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After the hearing on the motion to suppress, the trial court denied the
motion. In so doing, the trial court found that Detective McAlister clearly informed
the Defendant that he intended to ask her about the shooting incident which had
occurred at her ap artmen t that mo rning. Only after informing her of this purpose
did he have the Defendant execute the Miranda waiver. Th e trial court fu rther
found that the videotape of the interview did not reveal any indication of coercion
on the part of Detec tive McAlister. Accord ingly, the trial court concluded that the
Defe ndan t’s Miranda waiver was voluntary and denied the motion to suppress her
statem ent.
In order to b e valid, a wa iver of Miranda rights must be volunta rily,
knowingly, and in telligen tly made . Miranda v. Arizona, 384 U.S. 436, 479, 86 S.
Ct. 1602, 1 630, 16 L. Ed. 2d 694 (19 66); State v. Van Tran, 864 S.W.2d 465, 472
(Tenn. 1993), cert. denied, 511 U.S . 1046, 114 S. Ct. 1577, 128 L. Ed. 2d 220
(1994). The issue of voluntariness of the waiver must be decided based on the
totality of the circu mstan ces surr oundin g each particular c ase. Van Tran, 864
S.W.2d at 472-73 ; State v. Benton, 759 S.W.2d 427, 431-32 (Tenn. Crim. App.
1988). The findings of fact of the trial court on issues concerning the making of
a custodial statement are binding upon appellate review if there is any evidence
in the reco rd to sup port them . Van Tran, 864 S.W.2d at 473 (citing State v.
O’Guinn, 709 S.W.2d 561, 566 (Tenn. 1986), and State v. Chandler, 547 S.W.2d
918, 923 (T enn. 1977 )).
In the present ca se, the Defen dant argue s that the failure of Dete ctive
McAlister to tell the Defendant what offenses she was suspected of having
committed rendered h er Miranda waiver involuntary. In so arguing, the
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Defendant relies principally on a federal district court case from Montana, Schenk
v. Ellsworth , 293 F. Supp. 26 (D. Mon t. 1968). In Schenk, the court held that
because the defendant was not advised the reason for his detention and
questioning, waiver of his right to counsel was not knowing and intelligent.
Schenk, 293 F. Supp. at 29. The court continued stating that “when a perso n is
in custody and, for all practical purposes, charged with a crime, . . . then he must
be told of the crime he is suspected of having committed before a statement can
be taken.” Id. (citation omitted). The court noted that “it stands to reaso n that a
suspect canno t intelligently make the decision as to whether he wants counsel
if knowledge of the crim e susp ected is w ithheld from him.” Id. In support of her
reliance on Schenk, the Defendant also points out that this Court has recognized
that “a prisoner’s ignorance of the charge against him might conceivably be a
circumstance worthy of consideration with respect to the ‘totality of
circum stanc es.’” State v. Stearns, 620 S.W.2d 92, 95 (Tenn. Crim. App. 1981 ).
In considering the Defendant’s argument, we first note that this Court is not
bound by the Montana federal district court’s holding with regard to the
voluntariness of Miranda waivers. Instead, we are required to follow only the
applic able constitutional rulings of the Unite d States Supre me C ourt. See State
v. McKay, 680 S.W .2d 447 , 450 (T enn. 19 84), cert. denied, 470 U.S. 1034, 105
S. Ct. 1412 , 84 L. Ed . 2d 795 (1985); State v. Bowe rs, 673 S.W .2d 887, 889
(Tenn. C rim. App. 198 4).
W e believe the decision of the United States Supr eme Cour t in Colorado
v. Spring, 479 U.S. 564, 107 S. Ct. 851 (1987), is controlling on this issu e. In
Spring, the Court held that the failure of law enforcement officials to inform a
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suspect of all the pos sible sub jects of interrogation is not relevant to determining
whether the suspect voluntarily, knowingly, and intelligently waived his or her
Fifth Amendment privilege.
Furthermore, we believe that Tennes see case law is in accord with Spring.
In State v. Stearns, 620 S.W.2d 92 (Tenn. Crim. App. 1981), a case cited by the
Defendant in sup port of h er argu men t, this Co urt state d that “[t]h ough a priso ner’s
ignorance of the charge against him might conceivably be a circumstance worthy
of consideration with respect to the ‘totality of c ircum stanc es,’ Miranda v. Arizona
does not require the interrogating officers to advise a defendant of the nature of
the crim e unde r investigatio n.” 620 S .W.2 d 92, 95 (citations om itted).
Applying these pr inciples to the case sub judice, we conclude that the trial
court did not err in admitting the Defendant’s statement. It is clear from the
record that Detective McAlister did not tell the Defendant that she was or would
be charged with the criminal offenses of facilitating the murde r of Officer Scurry
and facilitating the attempted murder of Officer Brogdon. From our review of the
videotape of the interview, however, it is equa lly clear that McAlister did inform
the Defendant that he wanted to speak with her about the incident which had
occurred at her apartment earlier that morning. Thus, when the Defendant
executed the Miranda waiver, she was aware of the subject of the questioning.
After telling th e Def enda nt the s ubjec t of the q uestio ning, M cAliste r verba lly
advised her of h er con stitution al rights, the Defend ant herself read th e form
advising her of those rights, and she signed the form waiving those rights. The
record indicates that the Defendant was literate, h ad gra duate d from high s choo l,
and appeared coherent during questioning. Finally, there is no evidence in the
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record of any threat or coercion on the part of D etective McAlister. In that regard,
the Defend ant co ntend s that M cAliste r implie d she would be he ld inde finitely if
she did not submit to questioning. In particular, th e Defe ndant p oints to
McA lister’s respo nse to her qu estion abou t what w ould happ en if sh e did not wish
to make a statement. McAlister responded by making reference to her
outstanding warrants.
From our review of the record , however, we do not be lieve that Detective
McA lister’s response was threatening or coercive. The response must be
considered in the context of the conversation at that point. As McAlister was
informing the Defendant of her constitutional rights, the following colloquy
occurred:
Q. With that righ t [again st self-in crimin ation] in mind, do you wish
to waive that right and answer questions now?
A. I guess.
Q. W ell, it has either g ot to be a ye s or a no , it can’t be an I
guess.
A. And if I don ’t, what?
Q. If you don’t, then we can’t interview you and talk to you.
A. And what are they going to do, just hold me?
Q. I understand you have so me outsta nding warrants for
something, don’t you?
Considering the entire c olloquy, w e do no t believe tha t McAliste r’s comm ents
were threatening or coercive so as to suggest that the Defendant’s Miranda
waiver was involuntary. Rather, we believe McAlister’s reference to the
Defendant’s outstanding warrants was merely a simple response to the
Defe ndan t’s question of whether she would be held in custody if she did not wish
to make a statement. It is clear that imm ediately prio r to the refere nce to
outstanding warrants, McAlister told the Defendant that if she did not wish to
make a state men t, he co uld no t ques tion he r. The videota pe of th e interview
-17-
revea ls no indica tion of a threate ning or coercive mannerism on the part of
Detective McAliste r, nor doe s it show a reaction o n the pa rt of the Defendant
indicating that she fe lt threate ned o r coerc ed. W e sim ply cannot conclude that
McAlister’s reference to the Defendant’s outstanding warrants constituted a threat
or an attempt to coerce the Defendant into submitting to questioning.
According ly, after considering the totality of the circumstances, we believe
the record supports the trial court’s findings that the Defendant was aware of the
subject of the questioning prior to executing the Miranda waiver, that she was
advised of her constitutional rights, and that she waived those rights without any
threat or coercion. We therefore conclude that the State demonstrated the
Defend ant’s Miranda waiver and subsequent statement were voluntary and, thus,
the trial court did not err in denying the motion to suppress. The Defendant’s first
issue is w ithout me rit.
In her second issue on app eal, the Defen dant argue s that the trial court
erred by effectiv ely denyin g her m otion for a b ill of particulars. In order to
address this issue, we first examine the procedural history relating to the
Defe ndan t’s request for a bill of particulars. On September 30, 1996, the
Defendant filed a mo tion for a bill of p articulars pursuant to Rule 7(c) of the
Tennessee Rules o f Crimina l Proced ure. Th e motio n reque sted the S tate to
furnis h inform ation re gardin g the tim e of the offens es an d the m anne r in whic h
the Defendant was alleged to have facilitated the murde r and attemp ted murde r.
In other words, the Defendant sought to require the State to reveal which of her
actions constituted the “substantial assistance” necessary to prove the offense
-18-
of facilitation.2 On January 6, 1997, the State filed a response to the motion for
a bill of par ticulars. With reg ard to the reque st for information co ncerning the
time of the offenses, the State referred the Defen dant to its prior response to a
discovery reques t. With re gard to the request for information concerning the
manner in which th e Defe ndant w as allege d to have facilitated, the State
responded that the Defendant’s request was not proper because the function of
a bill of par ticulars is to apprise the Defendant of the offense charged, not provide
a means for broad discovery of the State’s theory of the case. On January 18,
1997, the Defendant filed a motion to compel a response to this latter request
contending that the State’s response was inadequate. After conducting a
hearing, the trial cou rt denie d the m otion to com pel. The Defendant now argues
that the trial court effectively denied her motion for a bill of particulars, thereby
depriving her of a fair trial in violation of the Fifth and F ourteen th Ame ndme nts
to the United States Constitution and Article One, Sections Eight and Nine of the
Tennessee Constitution.
Rule 7 of the Ten nessee R ules of Crimina l Procedure provides that “[u]pon
motion of the defendant the court may direct the filing of a bill of particulars so as
to adequa tely identify the offense charged.” Tenn. R. Crim. P. 7(c). The
purposes of a bill of particu lars are to provide the defendant with information
about the details of the cha rge if this is necessary to th e preparation of the
defense, to avoid prejud icial sur prise a t trial, and to ena ble the defendan t to
preserve a claim o f double je opardy. State v. Byrd, 820 S.W.2d 739, 741 (Tenn.
2
Criminal responsibility for the offense of facilitation of a felony lies where a person,
knowing that another individual intends to commit a specific felony but lacking the intent
required for criminal responsibility for the conduct of that individual under Tennessee Code
Annotated § 39-11-402(2), knowingly furnishes substantial assistance in the commission of the
felony. Tenn. Code Ann. § 39-11-403(a).
-19-
1991). The Advisory Commission Com ments to Rule 7(c) make it clear that the
bill of particula rs provision should b e cons trued to p rovide the defend ant with
knowledge of what he or she is charged with, not to provide bro ad discovery.
See also State v. Stephenson, 878 S.W.2d 530, 539 (Tenn. 1994). The test in
passing on a m otion for a b ill of particu lars is whether it is necessary that the
defendant have th e informati on sou ght in orde r to prepa re his defe nse an d to
avoid prejudicia l surprise. Id. at 539. A defend ant should be provided enough
information about the events charged so that h e or she may, with diligence,
adequ ately prep are for trial. Id.
In support of her argument, the Defendant emphasizes that although the
bill of particulars is not intended as a means of broad discover y of the S tate’s
evidence and th eories of the c ase, “to the exte nt that in formati on is needed for
the proper purposes of the bill, it will be required even if the effect is disclosure
of evidence or o f theories.” State v. Hicks, 666 S.W.2d 54, 56 (Tenn . 1984).
W hile we agree with this principle, we believe that it still begs the question of
whether the info rmatio n in a p articula r case is needed for the proper purposes of
the bill. In other words, the central question remains whether it is necessary that
the defendant have the information sought in order to prepare the defense and
to avoid p rejudicial su rprise. See Stephenson, 878 S.W.2d at 539.
Applying these principles to the case at bar, we can only conclude that the
trial court did not err in denying the Defendant’s motion to compel. From our
review, the reco rd conta ins nothin g to indica te that the Defendant was un able to
prepare her defe nse or was unfairly surpris ed by th e State ’s evide nce a t trial.
The State’s theory with regard to the actions constituting “substantial assistance”
-20-
focused on the Defe ndant’s d elaying of p olice entry in to the apa rtment, directing
Swafford to hide in the attic, lying to police about the presence of Swafford in the
apartment, concealing the distinct possibility that he possessed weapons, and
circumstantial evidence that she helped Swafford gain access to the attic and
attempted to conceal that he had done so. We believe tha t even with the denial
of the mo tion to compel, the Defendant was fully able to mount a defense against
this theory and did, in fact, do so. She readily admitted that she delaye d the entry
of the police into the ap artmen t, told Swafford to hide in the attic, and then lied
to police abou t Swa fford’s p resen ce in the apartment. The Defenda nt, however,
offered as explanation of why she had done so the abusive, threaten ing nature
of her relationship with Swafford. Similarly, she offered an explanation of why
she had not informed police that Swafford might possess weapons. With reg ard
to how Swafford gained access to the attic, the Defendant contradicted the
State ’s circumstantial evidence by directly denyin g that s he ha d any p art in
helping Swafford into the attic and offering an explan ation of how he might have
gained access by hims elf.
From this record, it does not appear that the Defendant was unprepared
to refute the State’s evidence by virtue of the de nial of h er mo tion to c omp el.
Given the manner in which events transpired on the morning of the shooting, any
defense proof would necessarily derive primarily from the Defendant’s own
testimony. At trial, the Defendan t was indeed able to attack the S tate’s theory
through her own testimony, with additional third-person corroboration of her
testimony about the nature o f her relation ship with Swafford . Although the jury
chose not to accredit her testimony, we do not believe that she was unprepared
to present a defense or unfairly surprised by the State’s evidence. In fact, the
-21-
thoroughness of her rebuttal of many aspects of the State’s theory indicates that
the D efend ant wa s fully pre pared for trial.
W e therefore conclude that it was not necessary that the Defend ant have
information concern ing which actions the State alleged to have constituted
“substantial assistance” in ord er to prepare her defe nse an d to avoid prejudicial
surprise. Thus, the trial court did n ot err in denying the De fendan t’s motion to
compel additional information in the State’s bill of particulars respon se. The
Defen dant’s se cond iss ue is witho ut merit.
In her third issue on appeal, the Defendant argues that the evidence was
legally insufficient to suppo rt her con victions. She contends that the evidence
failed to establish that she knowing ly furnished substantial ass istance to Swa fford
in his comm ission of secon d degree m urder and attempted second degree
murder. The thrust of the Defendant’s argument is that her conduct did not assist
Swafford because the police officers, in spite of what the Defendant said,
suspected that Swafford was in the apartment. She claims that there is no
indication that the police officers would have ac ted diffe rently o r that ev ents w ould
have tran spired diffe rently had her con duct be en differen t.
When an ac cuse d cha llenges the sufficiency of the convicting evidence,
the standard is whether, after reviewing the evid ence in the ligh t mos t favora ble
to the pro secu tion, an y ration al trier of fact could have found the essential
eleme nts of the crime beyond a reaso nable d oubt. Jack son v. V irginia, 443 U.S.
307, 319 (1979). Questions concerning the credibility of the witnesses, the
-22-
weight and va lue to b e given the evid ence , as we ll as all factual issues raised by
the evide nce, are resolved by the trier of fa ct, not this co urt. State v. Pappas,
-23-
754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). Nor may this court reweigh or
reevalua te the evidence. State v. Cabbage, 571 S.W .2d 832, 835 (Tenn. 197 8).
A jury verdict approved by the trial judge accredits the State’s witnesses
and resolves all conflicts in fa vor of the S tate. State v. Grace, 493 S.W.2d 474,
476 (Tenn. 1973). On appeal, the State is entitled to the stron gest legitim ate
view of the evide nce an d all inferen ces there from. Cabbage, 571 S.W.2d at 835.
Because a verdict of guilt removes the presumption of innocence and replaces
it with a presumption of guilt, the accused has the burden in this court of
illustrating why the evidence is insufficient to support the verdict returned by the
trier of fact. State v. Tug gle, 639 S.W .2d 913 , 914 (T enn. 1982); Grace, 493
S.W.2d at 476.
In the case sub judice, the Defendant was convicted of facilitation of
second degree murder and facilitation of attempted second degree murde r. The
relevant statutory provision states that “[a] p erson is crim inally res pons ible for the
facilitation of a felony if, knowing that another intends to comm it a specific felony,
but withou t the inte nt requ ired for c riminal responsibility under § 39-11-402(2), the
person know ingly furnishes substantial assistance in the commission of the
felony.” Tenn. C ode Ann . § 39-11-403 (a).
Reviewing the evid ence in the light most favorable to the State, we can
only conclude that the pro of was legally s ufficien t to sup port the Defe ndan t’s
convictions. The Defendant readily adm itted tha t Swa fford ha d prev iously to ld
her that he w ould sho ot if police office rs attem pted to ar rest him . She a lso
admitted that she believed Swafford was “crazy” en ough to do so. With re gard
-24-
to the Defe ndant’s c onduc t on the m orning o f the shooting, the State’s pro of,
taken in its m ost favora ble light, established that upon hearing the police at the
apartment door, the Defendant suggested to Swafford that he hide in the attic,
delayed the entry of the police officers to give Swaf ford tim e to hid e, and falsely
told the police that no one else was in the apartment. In addition, the Defendant
did not respond to Detective Mason’s requests that “if [Swafford] had any
weapons, she needed to tell us,” e ven tho ugh s he be lieved S waffor d prob ably
had a weap on with him in the attic. Finally, the State presented circumstantial
evidence that the D efenda nt helped Swafford gain acc ess to the attic or
attemp ted to conce al that he h ad don e so, or bo th. In that vein , the State
presented testimony that the eig ht-foot ceiling in the close t was too h igh to allow
access to the attic without assistance and that the on ly implements of assistance
were chairs from another room in the apartment or a folded ironing board leaning
in the close t. The State also presented testimony that a neighbor heard shuffling
sounds as if things were being m oved in the bed room du ring the time police w ere
waiting for the Defendant to put on clothing. The implication of this testimony
was that the Defendant had assisted Swafford in gaining access to the attic or
had concealed whatever implement he had used to do so.
Of course, the Defendant contra dicted som e asp ects o f the Sta te’s proof
and offered explanations for those actions to which she admitted. The resolution
of the conflicting testimon y, however, was a matter for the jury to resolve. The
jury resolved the issue against the Defe ndan t, finding her gu ilty. The Defe ndan t’s
contention that the record does not indicate any officer would have acted
differen tly had he r condu ct been different ign ores the testimon y of Detective
Mason, who sta ted tha t had th ey kno wn for s ure tha t Swa fford w as in th e attic
-25-
and armed, they would have waited for a SWAT team before entering the attic.
From our review of the record, we believe that the evidence was legally sufficient
to support the jury’s ve rdicts. The Defendant’s third issue is therefore without
merit.
In her fourth issue o n appeal, the D efendant arg ues that the trial court
erred in denying her requ est for a jury instruction on the defense of ne cessity.
The Defendant requested jury instructions on the defenses of duress and
necessity. In suppo rt of her req uest, the Defendant pointed out that the record
contained proof the Defendant was respo nsible for Swafford ’s arrest in January
of 1996. T he De fendan t testified that a fter his relea se, Swa fford threa tened to
kill her if she w as eve r again respo nsible for his arrest. She testified further that
on the morning of the shooting, Swafford pointed a gun at her and thre atened to
kill her if she revealed his location. As a result, she told Swafford to hide in the
attic and then falsely told the police officers that no one else was in the
apartme nt. She stated that she did not feel safe from Swafford in spite of the
presence of police officers because the police had failed to assure her protection
after sh e had Swaf ford ar rested only months e arlier. Based on the proof in the
record, the trial court granted the request for an instruction on duress but denied
the request for an instruction on necessity. The Defendant now contends that the
denial of a necessity instruction violated her right to a correct and comp lete jury
charge.
It is well-es tablish ed in Tennessee that the trial court has the duty of giving
a correct and complete charge of the la w app licable to the facts of the case and
that the defendant has the right to have every issue of fact raised by the evidence
-26-
and material to the defense submitted to the jury upon proper instructions by the
trial court. State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990), cert. denied, 498
U.S. 1007, 111 S. Ct. 571, 112 L. Ed. 2d 577 (19 90); State v. Bryant, 654 S.W.2d
389, 390 (T enn. 19 83); State v. Thompson, 519 S.W.2d 789, 792 (Tenn. 1975)
(citing Poe v. S tate, 370 S.W.2d 488 (1963)). It is also clear that neither duress
nor nece ssity is an affirmative defen se. Rather, bo th are merely defenses and,
as a result, if evidence fairly raises either defense, the trial cou rt must submit the
defense to the ju ry and mus t instruc t the jury that an y reaso nable doubt on the
existence of the defens e require s acqu ittal. State v. Culp , 900 S.W.2d 707, 710
(Tenn. Crim. App. 1994); Tenn. Code Ann. §§ 39-11-203, -504, -601, -609.
As we stated above, the trial court did instruct the jury on the defense of
duress. The instruction read as follows:
Included in the defendant’s plea of not guilty is her plea that
her acts constituting the offense charged were the result of duress.
Duress is a defense to prosecution where:
(1) the defendant is threatened with harm which is
presen t, imminent, impending and of such a nature as
to induce a well-grounded apprehension of death or
serious bodily injury if the act is not done;
(2) the threatened harm is continuous throughout the
time the act is being committed;
(3) the harm is one from which the defendant cannot
withdraw in safety; and
(4) the desirability and urgency of avoidin g the harm
clearly outweigh, according to ordinary standards of
reasonableness, the harm sought to be prevented by
the law pr oscribing the cond uct.
“Present” means now existing; relating to the present time.
“Imminent” means near at hand; on the point of happening.
“Impending” means to be imminent and threatening.
“Serious bodily injury” mean s bodily injury which involves a
substantial risk of death; protracted unconsciousness; extreme
physical pain; protracted or obvious disfigurement; or protracted loss
or substantial impairment of a fun ction o f a bod ily member, organ or
mental facu lty.
-27-
If evidence is introduced supporting the defense of duress,
the burden is on the state to prove beyond a reasonable doubt that
the defendant did not act from duress.
Any reasonable doubt on the issue of whether the defendant
acted from duress requires the defendant to be acquitted.
If you find from the proof that the de fenda nt acte d as a result
of duress or if you have a reasonable doubt as to whether or not the
defendan t acted as a resu lt of duress, then you must acq uit her.
This defense is unavailable to a p erson who intentionally,
knowingly, or recklessly becomes involved in a situation in which it
was probable that the person would be subjected to compulsion.
The standard sufficient to excuse criminal conduct is that the
compulsion must be immediate and imminently present and of such
nature to produce a well-grou nded fear of d eath o r seriou s bod ily
harm. In addition , there must be no re asona ble opp ortunity to
escape the compulsion without committing an offense.
This instruc tion is su bstan tially sim ilar to the applic able pattern jury instruction.
See T.P.I. — Crim. 40.03; Tenn. Code Ann. § 39-11 -504; State v. Robinson, 622
S.W.2d 62 (Tenn. Crim. App. 1980 ), cert. denied, 454 U.S. 1096, 102 S. Ct. 667,
70 L. Ed. 2d 6 36 (1981).
The defense of necessity is set forth at Tennessee Code Annotated § 39-
11-609. That section provides as follows:
Except as provided in §§ 39-11 -611 -- 39-11 -621, c ondu ct is
justified if:
(1) The pers on reason ably believes th e con duct is
immediately necessary to avoid imminent harm; and
(2) The desira bility and urgen cy of av oiding the ha rm cle arly
outweigh, according to ordinary standards of reasonableness, the
harm s ought to be preve nted by th e law pro scribing th e cond uct.
Tenn. Code Ann. § 39-11-609. The sentencing commission comments note that
the statutory provision codifies the common law defense of necessity and
excuses criminal conduct in those exceedingly rare situations where criminal
activity is an objectively reasonable response to an extreme situation.
-28-
As is apparent from the above-q uoted jur y instruction and statu tory section,
the defenses of duress and necessity are similar both in form and in the policy
supporting the availability of both defenses. Given that the sentencing
commission comments to the statutory section defining the defense of neces sity
point out that the section codifies common law, we believe we can look to a
common law distinction between the two defenses to aid our resolution of this
issue.
Common law historically distinguished between the defenses
of dures s and nece ssity. D uress was s aid to excuse criminal
conduct where the actor was under an unlawful threat of imminent
death or serious bo dily injury, which threat cau sed the actor to
engage in conduct violating the literal terms of the criminal law.
W hile the defense of duress covered the situation where the
coercion had its source in the actions of other human beings, the
defense of necessity, or choice of evils, traditionally covered the
situation where physical forces beyond the actor’s control rendered
illegal conduct the lesser of two evils. Thus, where A destroyed a
dike because B threatened to kill him if he did not, A would argue
that he acted under d uress, w hereas if A destroyed the dike in order
to protect more valuable property from flooding, A could claim a
defense of n ecessity.
United States v. Bailey, 444 U.S. 394, 409-10, 100 S. Ct. 624, 634, 62 L. Ed. 2d
575 (1980). A pplying this reason ing to the case at bar, we can only conclude that
the trial court did not err by instructing the jury on the defense of duress but
denying the D efendant’s req uest for a jury instruction on necessity.
Moreover, we note that the general policy supporting the existence of both
defenses was served by the duress instruction in the present case. The general
policy behind both defenses reflects a judgment that an individual acting under
threats or conditions wh ich a person o f ordinary firmness would have been
unab le to resist or re asona bly believing that crimin al action w as nec essary to
avoid a harm more s erious th an that soug ht to be pre vented b y the statute
-29-
defining the offense do es not dese rve criminal p unishm ent. See Bailey, 444 U.S.
at 410; Se ntencing Com mission Com ments to Tenn. Code Ann. §§ 39-11-504,
-609. In the case sub judice, the Defendant offered testimony that her actions on
the morning of the shooting were motivated by her fear of Swafford’s threats.
The jury instructions on duress provided the De fenda nt with a defen se, sh ould
the jury accredit her testimony, stemming from the policy described above. W e
believe the jury instruction on du ress adeq uately conveye d the policy and the
applic able defense. Accordingly, we conclude that the trial court d id not e rr in
denying the Defendant’s request to instruct the jury on the defense of ne cessity.
The D efenda nt’s fourth iss ue is witho ut merit.
In her fifth issue on appeal, the Defendant argues that the trial court erred
in reassem bling the jury to report guilty verdicts after the jury had initially reported
verdicts of not guilty. To address this issue, we must first recount the course of
events leading up to the rendering of verdicts of guilt for facilitation of second
degree murder and facilitation of attempted second degree murder. As stated
above, the Defendant was indicted on one count of facilitation of first degree
murder and one count of fac ilitation of attempted first degree murder. Her trial
took place from March 10 to March 14, 1997. The jury was sequestered during
trial. Presentation of proof was concluded on March 13, 1997, and the trial court
charged the jury with facilitation of first degree murder and facilitation of second
degree murder on count one, and facilitation of attempted first degree murder,
facilitation of attem pted s econ d deg ree m urder and fa cilitation of attempted
aggravated assault on count two. The jury began deliberations but we re una ble
to reach a verdict on March 13 and retired for the night. On March 14 they
-30-
resumed deliberatio ns and eventua lly notified the trial court that they had reached
a verdict.
The scenario which developed as the trial judge attempted to receive the
jury’s verdict w as qu ite asto nishin g and proba bly unp reced ented . Upon the jury’s
return to the courtroom, the trial judge told the foreperson that he would ask for
the jury’s verdict as to each count individually. The trial judge then asked the
foreperson what the verdict of the jury was a s to coun t one. The fore person
responded, “Not guilty.” The trial jud ge ask ed wha t the verdict w as as to count
two, and the foreperson again responded, “Not guilty.” The trial court confirmed
that the verdict was not guilty as to both counts, and the foreperson answered,
“That is correct.” All of the exchanges with regard to the verdicts were verbal.
It appears that the trial court did not employ written verdict forms. 3 The trial judge
thanked the juro rs for the ir service and, a s an e xpres sion o f appre ciation for their
involvement in a difficult trial, assured them that they w ould have three years of
exemption from jury service. He then dismissed the jury, telling them that the
court officers would acco mpa ny them to get th eir belongings. The jury then left
the jury box.
The courtroom was full of spectators, including a large number of police
officers in uniform and representatives from the media. The reaction to the not
guilty verdicts was audible and included crying. After being dismissed by the trial
court, the jury exited the courtroom by walking in front of the galle ry and ou t of a
door leading to a congested public area of the courthouse. From te stimon y at a
3
The utilization of written jury verdict forms, which apparently is common practice by
most criminal court judges in this state, would likely have prevented any problem concerning
the reporting of the verdict.
-31-
later hearing on a motion to dismiss, it appears that mos t of the ju rors, if no t all,
had left the c ourtro om b efore s ubse quen tly being called back in b y the trial cou rt.
It is unclea r whethe r all of the jurors had left the courtroom before being recalled.
Upon leaving the courtroom, the jurors walked into an area of the
courthouse which was open to the public. This area was quite congested as the
jurors exited the c ourtroom , with numero us attorneys an d mem bers of the m edia
presen t. The exiting jurors stretch ed ou t in a long line leading fro m the d oor to
the courtroom. It appears that the jury could have exited the courtroom by way
of another door which did not lead to an area of the courthouse open to the
public. Accord ing to affida vits subm itted at the late r hearing on the m otion to
dismiss, two court officers accompanied the jurors as they exited the courtroom.
The court officers stated that the jurors remained in their custody at all times
before being ca lled back into the courtroom. The court officers stated further that
the jurors were not subject to outside contact before being called back into the
courtroom.
As the jurors filed out of the courtroom, they walked past the prosecution
table. As one of the jurors walked by, one of the assistant district attorney
gene rals prosecuting the case noticed the juror shaking his head and saying “No
way.” After seeing this reaction, the assistant district attorney general asked the
trial court if the State could be heard. He then asked the trial judge if he was
going to poll th e jury, to which the trial ju dge re spon ded n egative ly since the
verdict had been not guilty. The assistant district attorney general then informed
the trial court of the juror reaction he had witnessed. At that point, the trial judge
said, “Brin g the jury ba ck. Righ t quick, catc h the jury.”
-32-
The jurors were then reassembled in the courtroom, standing in a curving
line in front of the jury box an d the ga llery. At this po int, the trial court m erely
began to poll the jury. T he trial judg e explaine d that he was going to ask each
individual juror if the verdict announced by the foreperson, as to eac h sepa rate
count, was the verdict of the individual juror. The trial judge questioned seven
jurors, all of whom indicated that the not guilty verdicts announced by th e
foreperson were their verdicts as individuals. The eighth juror polled by the trial
court was the forepers on. When she was questioned by the trial judge, she
indicate d that there m ight be so me co nfusion a s to the verd ict. She sta ted, “I
think the confusion may be, on that we also con sidered Se cond De gree Murd er,
Attempt for Second Degree, Facilitation on Second Degree Murder and
Facilitation of Attempted Second Degree Murder. . . . We did vote on that count
as well, and reached a verdict on that.” At this point, the trial judge instructed the
jurors to again take their seats in the jury box.
The trial judge attempted to clarify that when he asked the jury their verdict
as to each count, they shou ld report not only on the indicted offense, but also on
any lesser offe nses the y had co nsidere d. The confusion persisted, h owever,
because the foreperson was unsure whether facilitation of second degree murder
and facilitation of attem pted se cond d egree m urder we re lesser o ffenses. In fact,
when the trial court again asked the foreperson, after the attempt to clarify the
confusion, what th e verd ict of the jury wa s, the fo reper son re plied th at she did
feel there was a clear ve rdict, given th e clarification provided by the trial co urt.
The trial judge then informed the jury that he could not accept the verdict and
would have to send them back to deliberate further. The trial judge re-read a
portion of the charge instructing the jury that they must first consider the indicted
-33-
offenses, and if they fo und the Defen dant no t guilty of those offenses , they
should then conside r lesser offenses . The confu sion appare ntly lingered after the
instructions, and the foreperson m ade one las t attempt to clarify the m atter.
FOREPERSON: My question is, [the Defendant] was acquitted of
First -- facilitation of First Degree.
THE COUR T: Of First Degree.
FOREPERSO N: We, then, went to a lesser charge.
THE COU RT: A ll right.
FOREPERSON: Facilitation of Second Degree Murder and
Facilitation of Attempted Second Degree.
THE COURT: Yes. Did the jury make a decision as to those
charges?
FOREPERSO N: Yes, sir, we did.
THE COU RT: W hat is the decision as to that charge? First in Count
One wh at is the decision of the --
FORE PERS ON: Gu ilty.
THE COURT: Guilty as to Second Degree, is that what you’re telling
me?
FOR EPE RSO N: Tha t’s correct.
The trial court proceeded to poll the jury on whether their verdict was guilty of
facilitation of second degree murder in count one and guilty of facilitation of
attempted second degree murder in count two. Each juror responded
affirmatively.
W e have reviewed an audiotap e record ing of the ju ry reporting its verdict.
From our review, it appears that approximately thirty-five seconds passed
between the tim e whe n the tria l court firs t dism issed the jury a nd the time the
assistant district attorney asked the trial court if the State could be heard. An
additional fifteen seconds passed b efore the trial court orde red the court officers
to catch the jury and bring the m ba ck to th e cou rtroom . After th e trial co urt’s
order, approximately fifty-eight seconds passed b efore the jury was reassembled
in front of the jury box. T hus, th e time period betwe en the jury’s initial dismissal
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and the trial court’s order to reasse mble th em wa s fifty secon ds. Fifty-eight more
seconds passed before the jury was actually reassembled in front of the jury box.
The Defendant now argues that the trial court erred in reassembling the
jury after they had reported the not guilty verdicts. She asserts that after the jury
reported the not guilty verdicts, the trial court discharged them. She contends
that Tennessee law does not permit reassembly of the jury to amend or correct
a verdict in a substan tive man ner after th e jury has been d ischarge d. She argues
that reassem bling the jury, after their report of not guilty verdicts and discharge,
in order to e nter a findin g of guilt violate d double jeopardy and due process
protections. See U.S. Const. amend. V; U.S. Const. amend. XIV, § 1; Tenn.
Const. art. I, §§ 6, 8, 9, 10.
In its brief on appeal, the State agrees that when a jury is discharged, they
may not be reass embled to amend or correct their verdict in a su bstantive way.
See State v. Jefferson, 938 S.W.2d 1, 22 (Tenn. Crim. App. 1996). The State
contends, however, that the jury in the present case was not actually discharged
after reporting the initial not g uilty verdicts. A s a result, it was not error for the
trial court to reassem ble the jury to correct the verdicts. In su pport of its
contention that the jury wa s not a ctually discharged, the State argues that the
jurors remain ed in the c ustody o f court officer s, remained an undispe rsed un it,
and had no opportunity for outside contacts before being reassembled.
From these argum ents, it is clear that the key point of contention, and the
central question for our review, is whether the jury in the present case was
discharged after initially repo rting not gu ilty verdicts. If the jury was indeed
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discharged, both the Defendant and the State agree that it was improp er to
reass emb le them to correc t or amen d the initial verdicts. Obviously, we are
presented with an unus ual ch ain of e vents in the rep orting of the verdicts. Not
surprisingly, there a re very fe w cas es de aling w ith suc h situa tions. There are,
however, a small number of reas onab ly similar cases both from Tennessee and
from other jurisdictions which contain concepts and principles useful for our
disposition of this issue.
There are several cases from other jurisdictions which confront the issue
raised here, nam ely the point at which a jury is considered discharged. Although
none of these cases exhibit the precise factual pattern of the case at bar, they do
highlight some of the chief concerns which enter into an analysis of the issue of
when a jury is discharged. We will therefore summarize some of these ca ses to
aid in our future discussion of Tennessee case law.
The first principle which we can glean from an examination of cases from
other jurisdictions is that the verbal discharge or dismissal of the jury by the trial
court does not render the jury discha rged fo r purpo ses o f subs eque nt reas sem bly
to correct or amen d a verdic t. For instance, a New Jersey case contains
language directly stating that “the words ‘the jury is discharged’ do not in
themselves terminate the ca se.” State v. Brande nburg, 120 A.2d 59, 61 (Hudson
Coun ty Ct. 19 56). As will become apparent from our later discussion of
additional cases, other jurisdictions are in accord with this principle.
This principle lea ds us to th e next log ical ques tion, namely w hat factors
other than the verbal dismissal of the jury come into play in determining whether
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a jury has actu ally been d ischarge d. Cases from oth er jurisdiction s dem onstrate
two primary factors at issue in determining discharge. The first involves the issue
of separation from the presence and control of the trial court. The second
involves the issue o f outside contac ts or influence on the jury.
Branden burg is a prim e exam ple of a case highlighting these two factors.
In Branden burg, the jury foreperson reported that the jury had found the
defend ants not guilty. The trial court verbally dismissed the jury. In the
passageway outside the courtroom, some of the jurors indicated that the
foreperson had not reported the correct verdict. A court officer informed the trial
judge, who reass embled th e jury. The jury was reassembled approximately ten
minutes after the ir verbal dism issal. Id. at 60. The Branden burg court concluded
that the jury had been discharged and, thus, the reassembly was improper. The
principal reason behind this conclusion was that the jury had left the presence of
the trial court. Id. at 61-62. The court stated that “[o]nce a jury has been
discharged and they have gone out of the presence of the court, it would be a
dangerous procedure to have th em aga in deliberate upo n the case.” Id. at 61.
The court w ent on to state that “it is enough if [the jurors ] are out of the presence
of the court, regardless of the distance therefrom .” Id. at 62. The court also
noted that there w as “no ind ication from any source that the jury in the instant
case was coerce d or that they were intimidated.” Id. at 61. Yet the court pointed
out that “whether they had contact with others during the interval between
discharge and reass emb ling is im mate rial, for they did have an opportunity to do
so.” Id. at 62.
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Emphasizing the factor concerning separation from the presence and
control of the trial cou rt is the Virgin ia case o f Melton v. Com monw ealth, 111 S.E.
291 (Va. 1922). In Melton, the jury returned a verdict of guilt of rape, but set the
punishment in the punishment range for attempted rape. The trial court did not
notice this inconsistency imm ediate ly and verbally dism issed the jury. The jurors
did not separate from each other, but did retire to the jury room accompanied by
a sheriff for the purpose of claim ing the ir attendance fees. The trial court soon
reassembled the jury to correct the inconsistency. The Melton court concluded
that the reassembly was improper because the jury had been discharged. The
court stated, “W hen the court announces their discharge, and they leave the
presence of the court, their functions a s jurors have en ded.” Id. at 291.
In a simil ar vein is the Texas case of We bber v. Sta te, 652 S.W.2d 781
(Tex. Crim. App. 1983). In Webber, the court read the verdict of the jury finding
the defendan t guilty of kidnaping and assessing p unishme nt at four years
imprisonm ent. The co urt then verbally dismissed the jury. Almo st imm ediate ly
the trial court discovered tha t the jury had signed an additional verd ict form
recommending that punishment be probated. The court inquired as to the validity
of this form, and the jurors indicated that it was m istakenly signed. T he trial court
then allowed the jury to return a verdict showing no recommendation for
proba tion. The Webber court concluded that it was not error to reconvene the
jury. The co urt noted that the jury had not been out of the presence of the trial
court wh en the e rror was n oticed an d they we re recon vened. Id. at 782.
Much the same is true of the Califor nia case of Peop le v. Po well, 221 P.2d
117 (Cal. Dist. Ct. App. 1950). In Powell , the jury informed the trial court that
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they had reached a verdict on both counts of an indictment as to one defendant
but could not agre e as to the other. Id. at 118. The trial court verbally dismissed
the jury, instructing them to hand the unused written verdict forms p ertaining to
the defendant on whom the jury could n ot agree to the clerk . Id. at 118-19. The
trial court then discover ed that the jury had in fa ct reache d a verdic t as to that
defendant on one of the two c ounts. T he trial cou rt reassembled the jury and
allowed them to render the verdict of guilt as to the one count. The Pow ell court
found no error, noting that “the jury were in the box and under the control of the
court” du ring the en tire time. Id. at 119.
Emphasizing the factor concerning outside contacts or influence on the jury
is the Massachusetts case of Commonwealth v. Brown, 323 N.E.2d 902 (Mass.
1975). In Brown, the jury returned verdicts of not guilty of murder but guilty of
armed entry. The trial judge verbally dismissed the jury, and a court officer
accompanied them bac k to the jury room . As they neared the jury room, the
foreperson of the jury informed the court officer that there was something wrong
with the verdicts . The trial court was informed and reassembled the jury. The
jury indicated that bec ause the clerk had re ad the charg es to th em in a different
manner than listed on the forms they had used, they had mistakenly reported not
guilty of murd er althou gh they h ad actu ally found g uilty as to m urder. Id. at 904.
On appeal, the Brown court found no error. The court noted that “[t]here had
been no comm ingling of the jurors with an y mem bers of the gen eral public.” Id.
The court specifically distinguished other cases finding e rror in reassem bly where
there had been “an opportu nity for outside influence .” Id. at 905 (emp hasis
added).
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One such case distinguished by the Brown court was Peop le v. Ru shin,
194 N.W.2d 718 (Mich. Ct. App. 1971). In Rush in, the jury return ed verdic ts of
not guilty and were verb ally dismissed by the trial court. The court clerk later
informed the trial court that one of the jurors expressed dissatisfaction with the
reported verdict. In response, two minutes after the jury had left the courtroom,
the trial court rea ssem bled the ju ry to clarify the ve rdict. Id. at 719. The Rush in
court found the reassem bly to be error. The court stated that “[o]nce the jury has
been officially discharged and left the c ourtro om, w e hold that it is er ror to re call
it in order to alter, amend or impeach a verdict in a criminal ca se.” Id. at 721. In
explaining the rationale behind its holding, the court stated that it “cannot
ascertain the influence to which the jury has be en sub jected afte r it has left the
courtroom , be it for two minutes o r two days.” Id. at 721-22.
Similarly, in State v. Fornea, 140 So. 2d 381 (La. 1962), the Louisiana
Supreme Court emphasized the issue of outside contacts as well as the control
of the trial court. In Fornea, the jury returned a verd ict of guilt of theft. After
polling, the trial cour t verbally dism issed the jury. Id. at 382. The trial court later
reassembled the jury and permitted them to return a verdict specifying the value
of the property ta ken in the theft. Id. at 382-83. Th e Fornea c ourt found no error,
noting that the jury remained in the box, and therefore under the control of the
trial court, after dismissal but prior to reas semb ly. Id. at 383. The court also
poin ted out that there was “no showing whatever . . . that any outsider had an
opportunity to talk with them [the jury] or they with him . . . .” Id.
Finally, the W ashing ton case of State v. Edwards, 552 P.2d 1095 (Wash.
Ct. App. 1976), emphasizes the importance of outside contacts or influence in the
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determination of wheth er a jury ha s been discharg ed. In Edwards, the jury
reported that they were deadlocked. The trial court declared a mistrial and
verba lly dismissed the jury. The jury then left the courtroom and entered the
adjacent jury room, with the ba iliff following th em. Id. at 1096. After entering the
jury room, one of the jurors informed the bailiff that they had reached a verdict as
to one count, but not the other, and asked if that circumstance made any
difference. The bailiff informed the trial judge, who reassembled the jury and
accepted their verdict of guilt on the one co unt. Id. at 1097. The Edwards court
found no error. The court stated that a “discharge will occur in fact when a jury
is permitte d to pass from the sterility of the co urt’s contro l and allowed to
separa te or dispe rse an d min gle with outsid ers. In s uch c ases , conta mina tion is
presumed even though the jurors may not have taken advantage of the
opportu nity to discuss the ca se.” Id. (emph asis add ed). In the case before them,
however, the court noted that the jury cou ld not pos sibly have been s ubjected to
even the opportunity for outside influence because the door leading outside from
the jury room w as locke d, with only th e jurors ins ide. Id. The court concluded
that
a trial judge’s verbal disch arge of the jury after receiving their verdict
in a criminal case, does not preclude a later correction of the verdict
to conform to the actual finding where the jury has not separated or
dispersed, but has remained sequestered and insulated from any
outside influence and the correction is not one of substance
resulting from further deliberations on the merits of the cause.
Id.
From ou r examination o f the above cases, it is clear that both separation
from the pres ence a nd con trol of the trial co urt and the possibility of outside
contac ts or influence are im portant elem ents in the determ ination of whethe r a
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jury has b een d ischa rged. T his circumstance is not surprising, given the obvious
relation ship between the two factors. Our research reveals that the majority of
cases perm itting rea ssem bly of the jury have done so where the jury remained
in the courtroom or even in the jury box itself, and hence in the presence and
control of the tria l court, fo llowing verbal dism issal. See, e.g., Webber, 652
S.W.2d at 782; Pow ell, 221 P.2 d at 119 ; Fornea, 140 So . 2d at 383 ; Summ ers
v. United States, 11 F.2d 583, 58 6 (4th Cir. 1 926), cert. denied, 271 U.S. 681, 46
S. Ct. 632, 7 0 L. Ed. 1 149 (19 26). W hen the jury has left the presence of the trial
court after verbal dismissal, most cases permitting reassembly of the jury do so
only if the jury had no opp ortunity for outside con tact or influence . See, e.g.,
Edwards, 552 P.2d at 1098 ; Brown, 323 N.E .2d at 904 -05; People v. McNeeley,
575 N.E.2d 926, 929 (Ill. App. Ct. 1991). With this background from other
jurisdictions, we turn now to Tennessee law on the issue.
The principal Tennessee case dealing with this issue is Clark v. S tate, 97
S.W.2d 644, (1936). In Clark, the defen dant wa s tried with th ree cod efenda nts
on multiple charges. After deliberating, the jury reported to the trial court that
they were d eadlo cked . As a re sult, the trial cou rt decla red a m istrial an d verb ally
dismissed the jury. Id. at 644. T wo days later, the de fendan t filed a mo tion to
reass emb le the jury for purposes of enterin g a not gu ilty verdict with res pect to
the cha rges ag ainst him . Id. at 644-45. The defendant’s motion was based on
his discovery after the dis missa l of the jury tha t the jury had , in fact, found him not
guilty as to all charges. They did not so report, how ever, becaus e they were
under the impression that they had to reach a verdict as to all four codefendants.
Id. at 645.
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The supreme court, while recognizing “the plausibility of the appeal made
to the court’s sense of practical justice,” nevertheless found it improper to
reassemble the jury for the purpose of entering a correct verdict. Id. at 644. In
support of its decision, the court stated the following:
An invariably followed rule, supported not only by precedent, but the
soundest reason, grounded on universal knowledge of human
nature , is the ru le that after the discharge of a jury in a felony case
and the separation of the jurors to such a degree that outside
contac ts may have been even momentarily had, the members of
that jury may not be reconvened for the taking of any action
whatever involving the fate of the accused.
Id. at 646 (emphasis added). The court went on to note the following:
It is urged on the petition to this court that “it was a very short
time” only, after the discharge of the jury, and that “all of the jurors
had not left the Court building” when “counsel informed the Court as
to this error of the foreman in reporting an erroneous finding of the
jury.” Neither exactly how long a time, nor how many had left the
building, appea rs, but flexibility in time of separation is incom patible
with the enforc eme nt of this rule.
Id. (emph asis add ed). Finally, the court also specifically mentioned the
importance of the ju ry’s bein g out o f the pre senc e of the trial cou rt after th eir
verbal disc harge. Id.
From our read ing, the pla in langua ge of Clark emph asizes b oth separation
from the presence of the trial court and the opportunity for outside contacts or
influence as factors in the determination of whether a jury has been discharged.
This approach comp orts with the approa ch taken by man y other jurisd ictions with
regard to determining jury discharge. See, e.g., Branden burg, 120 A.2d at 61-62;
Webber, 652 S.W .2d at 782 ; Fornea, 140 So. 2d at 383.
After careful consideration, we conclude that the jury in the case at bar had
indeed been discharged after reporting the initial not guilty verdic ts and before
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reassembling in the courtroom to correct the initial verdicts by re porting ve rdicts
of guilt of lesser offenses. It is clear from the re cord that most, if not all of the
jurors exited the courtroom, and the presence of the trial court, after the trial court
verba lly dism issed them . It is also clear that the area to which the jurors exited
was open to and occupied by members of the general public, interested in and
reacting to the outcome of the case. We believe these circumstances
demo nstrate separation of those jurors from the trial court to such a degree that
mom entary outside c ontacts m ay have b een ha d. See Clark, 97 S.W.2d at 646.
Although very little time ela psed b efore the jury was re assem bled, Clark
spec ifically stated that “flexibility in time of separation is incompatible” with the
application of the stan dard an nounc ed in that c ase. Id. As su ch, we can o nly
conclude that the jury was discharged upon e xiting the courtroom, and the
presence of the trial court, into an area occupied by the general public.
The State urges both that the jurors were not out of the control of the trial
court because they were accompanied by court officers and that, according to
affidavits submitted by those court officers, the jurors were not subjected to any
outside contacts or influenc e. With regard to the second contention, we believe
the plain lang uage o f Clark renders the argument immaterial. Clark does not
speak of the existence or lack of actual contact, but rather focuses on whether
outside contacts may have be en had . Clark, 97 S.W.2d at 646. This language
is in accord with several cases from other jurisdictions , finding the relevant inqu iry
to be the possibility of outside contact o r influence . See, e.g., Branden burg, 120
A.2d at 62 (stating whe ther jurors had co ntact with others between dismissal and
reass emb ly was imm aterial, for the jurors did have the opportun ity to do so);
Fornea, 140 So. 2d at 383 (holding reassembly not erroneous w here record
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demonstrated no outsider ha d the oppo rtunity to talk with the jurors or vice
versa); Edwards, 552 P.2d at 1097 (stating that discharge occurs where jurors
pass from co urt’s contro l and are allowed to mingle w ith outsiders, regardless of
whether actual contacts took place). In the case sub judice, when the dismissed
jurors exited the courtroom into an area of the courthouse occupied by mem bers
of the general public, clearly the possibility of outside contact or influence existed.
The State also contends that the jurors were not out of the control of the
trial court because court officers accompanied them outside the courtroom. The
Defen dant, on the other h and, argues that the presence of court officers was
irrelevant because, upon discharge, the relationship between the jurors and the
court officers was that of third p ersons . See Melton v. C omm onwea lth, 111 S.E.
291 (Va. 1922). We are not prepared to state that the prese nce of court officers
with the jury is irrelevant to a determination of whether a sequestered jury has
been d ischarge d. In the case at bar, however, we do not believe the presence
of court officers with the jurors who exited the courtroom alters our conclusion
that the jury was discharged.
First, even though the jurors were accompanied by court officers, the jurors
were not given the customary admonishments by the trial court to guard them
against improp er influenc e. See People v. Thornton, 202 Cal. Rptr. 448, 454,
(Cal. Ct. App. 1984) (noting the importance of the admonitions which guard the
jury’s judgment from outside influence when the jury leaves the presence of the
trial court). Second, even if we were to conclude that the presen ce of the court
officers amounts to some type of continued control by the trial court, the jurors
were nevertheless exposed to the possibility of outside contact or influence when
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they exited the c ourtroom into an area of the courthouse occupied by the general
public. Had the jurors in the case at bar exited the courtroom through the door
leadin g into the area unoccupied by the general public, the effect of
accompaniment by the court officers m ight be significantly different. See
Com monw ealth v. Brown, 323 N.E.2d 902, 904-0 5 (Mass. 1975) (holding
reass emb ly permissible where jurors remained in control of trial court by virtue
of being in custody of court officers and having no opportunity for outside
influence).
Thus, having considered the principles set forth in Clark, along with
contextual background from cases in other jurisdictions, we conclud e that the jury
in the pres ent case was disc harged after repo rting not gu ilty verdicts and be fore
being reassembled to amend or correct their verdicts. The State agrees with the
Defendant that “once a jury in a felony case has been discharged and outside
contac ts may have occurred, the jury may not be reconvened for the purpose of
taking further action involving the a ccused.” State v. Stephenson, 878 S.W .2d
530, 554 (Tenn. 1994). As a result, we conclude it was error for the trial court to
reass emb le the jury and permit e ntry of guilty verd icts after the jury had reported
not guilty verdicts and be en disch arged. T he not g uilty verdicts reported by the
jury, coupled with the discharge of the jury, concluded the Defend ant’s jeopardy.
See Green v. United States, 355 U.S. 184, 188, 78 S. Ct. 221, 223-24, 2 L. Ed.
2d 199 (1957). Accord ingly, we be lieve her su bsequ ent con victions violate
doub le jeopardy and due process protections, requiring us to reve rse and vacate
those convictions.
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In her sixth issue on appeal, the Defendant makes an alternative argument
regarding her fifth issue. She argues that if the reassembly of the jury to amend
or correc t the no t guilty ve rdicts d id not viola te dou ble jeopardy and due process
protections so as to require vacating her convictions, the manner in which the
guilty verdicts were ren dered at least m erited granting a mistrial. Having
concluded that the reassembly of the jury was improper and did vio late do uble
jeopardy and due process protections, requiring reversal of the convictions, we
deem it unne cess ary to a ddres s whe ther the man ner in which the verdicts w ere
rende red m erited a mistria l.
In her seventh issue on a ppeal, the De fendant argu es that the trial court
erred in charging the jury with respect to release eligibility pursuant to former
Tennessee Code Annotated § 40-30 -201(b)(2). 4 She contends that the
instruction formerly required by § 40-35-201 (b)(2) is unconstitutional for a number
of reasons. First, citing to Farris v. Sta te , 535 S.W .2d 608 (T enn. 1976), she
claims that the instruction is unconstitutionally vague. Second, she argues that
the instruction violates due process. Third, she contends that the instruction
violates separa tion of pow ers princip les, citing to the concurring opinion of Justice
4
On May 1, 1998, Tennessee’s General Assembly passed Public Chapter No. 1041,
an amendment to § 40-35-201, which deletes subsection (b) in its entirety and substitutes the
following:
In all contested criminal cases, except for capital crimes which are governed by
the procedures contained in TCA §§ 39-13-204 and 39-13-205, and as
necessary to comply with Article VI, Section 14 of the Constitution of the State
of Tennessee and TCA § 40-35-301, the judge shall not instruct the jury, nor
shall the attorneys be permitted to comment at any time to the jury, on possible
penalties for the offense charged nor all lesser included offenses.
This amendment will apply to all trials occurring after the act’s effective date.
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Brock in Farris, 535 S.W.2d at 615. This issue has b een a divisive o ne for th is
court. 5
Former Tennessee Code Annotated § 40-35-201(b)(1) provided that upon
the motion of eithe r party, th e trial co urt in all criminal cases, excepting those for
capital offens es, sh all cha rge the jury on th e pos sible p enaltie s for the indicted
offense and all lesser offenses. The section under attack in the case at bar is §
40-35-201 (b)(2), which mandated the inclusion of release eligibility information
as part of the § 40-35-201(b)(1) charge on possible penalties:
When a charge as to possible penalties has been requested
pursuant to subdivis ion (b)(1), the judge shall also include in the
instructions for the jury to weigh and consider the meaning of a
sentence of imprisonment for the offense charged and any lesser
included offenses. Such instruction shall includ e an ap proxima te
calculation of the minimum number of years a person senten ced to
imprisonment for the offense charged and lesser included offenses
must serve before reach ing su ch pe rson’s earliest rele ase eligib ility
date. Such calculation shall include such factors as the release
eligibility percentage established by § 40-35-501, maximum and
minimum sentence reduction credits authorized by § 41-21-236 and
the governo r’s powe r to reduce prison overcr owdin g purs uant to title
41, chapter 1, part 5, if applicable.
(ii) Such instruction s to the jury shall also include a statement
that wheth er a de fenda nt is act ually released from incarceration on
the date w hen s uch d efend ant is firs t eligible for release is a
discretionary decisio n made by the board of paroles based upon
many factors, and that such board has the authority to require the
defend ant to serv e the en tire senten ce imp osed b y the cou rt.
5
See State v. Robert Anthony Payne a/k/a Anthony Jordan, C.C.A. No. 01C01-9701-
CR-00031, Davidson County (Tenn. Crim. App., Nashville, June 17, 1998; State v. Robert H.
McCurdy, C.C.A. No. 03C01-9706-CR-00232, Union County (Tenn. Crim. App., Knoxville, Mar.
23, 1998); State v. Michael Dinkins, C.C.A. No. 02C01-9702-CR-00075, Shelby County (Tenn.
Crim. App., Jackson, Mar. 12, 1998); State v. Jason M. Weiskopf, C.C.A. No. 02C01-9611-CR-
00381, Shelby County (Tenn. Crim. App., Jackson, Feb. 4, 1998); State v. Jerry Ray Cooper,
C.C.A. No. 01C01-9504-CC-00150, Lincoln County (Tenn. Crim. App., Nashville, Nov. 17,
1997) (principal opinion with two concurring opinions); State v. Dwjuan L. Bradford, C.C.A. No.
01C01-9607-CR-00294, Davidson County (Tenn. Crim. App., Nashville, Sept. 30, 1997); State
v. Curtis Lee Majors, C.C.A. No. 01C01-9602-CR-00076, Davidson County (Tenn. Crim. App.,
Nashville, July 30, 1997); State v. Howard E. King, C.C.A. No. 02C01-9601-CR-00032, Shelby
County (Tenn. Crim. App., Jackson, Oct. 22, 1996), aff’d (Tenn. 1998).
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Tenn. Code Ann. § 40-35-201(b)(2)(A) (emphasis added). The statute also
required the Department of Correction to furnish trial judges w ith the app roximate
calculation of release eligibility referred to in § 40-3 5-201(b )(2)(A)(i). Id. § 40-35-
201(b)(2)(B).
In the case sub judice, the State requested that the trial court charge the
jury on po ssible pena lties. The Defendant objected to that part of the charge
pertaining to release eligibility, namely the part required pursuant to § 40-35-
201(b)(2). The trial court overruled the Defendant’s objection and charged the
jury according to the mandates of the statute. The trial court’s instructions to the
jury on possible penalties comported with the requirem ents of the statutory
provision and tracked the language of the pattern jury instruction . See T.P.I. —
Crim. 43.11. In particular, the trial court instructed the jury that they could “weigh
and consider” the meaning of a sentence of imprisonment and then defined the
various possible sentences of imprisonment applicable to the Defendant’s case.
In that vein, the trial court instructed the jury with regard to count one that
facilitation of first degree murder carried a ran ge of fifteen to twenty-five years
imprison ment, with the earliest release eligibility date, based on the minimum
sentence, being 2.96 years. The trial court instructed the jury that facilitation of
second degree murder carrie d a rang e of eight to twelve yea rs impriso nmen t,
with the earlies t release e ligibility date, based on the minimum sentence, being
1.58 years. With regard to count two, the trial court instructed the jury that
facilitation of attempted first degree murder carried a range o f eight to twelve
years, with release eligibility at 1.58 years. With regard to facilitation of
attempted second degree murder, the range was three to six years, with release
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eligibility at 0.60 years. Fina lly, with regard to facilitation of attempted aggravated
assault, the range was one to two years, with release eligibility at 0.21 years.
Our supreme court recently provided us with instructions and guidance on
this issue in the cas e of State v. Howard E. King, No. 02-S-01-9703-CR-00021,
Shelby County (Tenn., Jackson, July 6, 1998) (to be published). In King, our
supreme court held that former Tennessee Code Annotated § 40-35-201(b)(2)
did not violate the separation of powers clauses of the Tennessee Constitution.
Id. at 8. The court also found tha t the statute was n ot imp ermis sibly vag ue, did
not mandate a misleading jury instruction, and did not require a jury instruction
on matters irrelevant to a Defen dant’s gu ilt or innocen ce. Id. at 17. The co urt
concluded that the jury instr uction given in King violated the due process clause
of neither th e United States n or the T ennes see Co nstitution. Id.
As we have noted, in the case at bar, the trial court instructed the jury that
it could “weigh and consider” the meaning of a sentence of imprisonment for the
offense charged and any lessor included offenses. In contrast, the King
instruction charged the jury that the ranges of punish ment a nd relea se eligibility
dates were for its in formatio n only. Id. at 4. In King, although the su preme co urt
stated that it was significant that the jury had been instructed that the sentencing
information was “for your information only,” the court specifically stated that
sentencing and parole information had a “measu re of rele vance ” to the ju ry’s
function in determ ining guilt or in nocen ce. Id. at 14. The court further noted that
“the legislature has determined for us the relevancy of sentencin g and parole
information.” Id.
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The challenged jury instruction was mandated by the legislature. The
constitution ality of the statute has been upheld by our supreme court. The
supreme court rejected the argument that sentencing and parole information are
entirely irrelevant to th e jury’s func tion of dete rmining guilt or innoc ence. W e
therefore conclude tha t the trial judge did not err by giving the jury instruction
manda ted by former T ennesse e Code A nnotated § 4 0-35-201(b )(2).6
CONCLUSION
Confusion and un certainty co ncernin g the jury ve rdict is obvious. One
thing is certain — the jury announced a verdict of “not guilty” in open court and
the trial judge accepted the verdict and dismissed the jury. We conclude that
reassembling the jury for further proceedings offended due process and violated
the Defendant’s constitutional protection from being twice put in jeopardy for the
same offense.
Although hindsight is a perfect tool, it would appear a number of unique
happenings led to this result. Written verdict forms were not utilized although
they are not sp ecifically requ ired by T ennes see law . After the foreperson
unm istaka bly annou nced a not guilty verdict as to both counts, the trial judge
unde rstand ably took that ve rdict at face value. The jury was not polled nor asked
if that was th e verdict of a ll jurors. Yet, amazingly, even after the trial judge took
the verdict and dismissed the jury, no juror immediately indicated that was not the
6
A panel of this court recently divided on the issue of whether the inclusion of the
“weigh and consider” language violated the Defendant’s due process rights. State v. James
C. Nichols, C.C.A. No. 01C01-9704-CR-00158, Davidson County (Tenn. Crim. App., Nashville,
Aug. 12, 1998); see also State v. Adrian Wilkerson and Steven Murphy, C.C.A. No. 01C01-
9610-CR-00419, Davidson County (Tenn. Crim. App., Nashville, Aug. 26, 1998); State v.
Marcus L. Nelson, C.C.A. o. 01C01-9707-CR-00237, Davidson County (Tenn. Crim. App.,
Nashville, Aug. 27, 1998).
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verdict. Although the state could have immediately requested that the jury be
polled as to the not guilty verdict, as allowed by Tenn. R. Crim. P. 31(d), this was
not done . It would appe ar that o nly one juror, after leaving the jury box, indicated
some kind of problem. Upon noticing the juror, the prosecutor then asked if the
jury was to be polled. The trial judge declined to do so since it wa s “a not guilty
verdict.” Had a ny of the above things been done differen tly, it would appear the
present problem would have been avoided. Yet, we reemphasize the observation
is based upon h indsight.
Thus, this unusual scenario unquestionably requires the application of the
law prohibiting reassembly of the jury to announce a different verdict. Assuming
the jury had agreed to the guilty verdict as was finally announced, it is indeed
unfortun ate that this verdict can n ot be re cogn ized d ue to th is unusual factual and
procedural scenario. We would hope such a scenario does not again find its way
into a Tennessee courtroom.
W e are therefore compelled to reverse the judgment of the trial court and
vacate the Defendant’s convictions.
____________________________________
DAVID H. WELLES, JUDGE
CONCUR:
___________________________________
JOSEPH M. TIPTON, JUDGE
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___________________________________
JOE G. RILEY, JUDGE
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