Walsh v. State

IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
April 2005 Session

ROBERT D. WALSH v. STATE OF TENNESSEE
Appeal by permission from the Court of Criminal Appeals
Shelby County Criminal Court
No. P-26520 Arthur T. Bennett, Judge

No. W2003-02040-SC-R11-PC - Filed June 24, 2005

This case comes before us on appeal from a denial of post-conviction relief. The petitioner sought
relief from his conviction for aggravated sexual battery, raising several claims including that he was
denied his right to a fair and impartial jury trial because of an improper communication by a court
officer to the jury during deliberations. During the hearing on the post-conviction petition, the court
heard testimony from a juror regarding the content of the communication and also the subjective
effect of the officer’s statement upon the juror. At the close of the hearing, the trial court found that
the improper communication had not influenced the verdict and therefore denied the petition for
post-conviction relief. Upon review, the Court of Criminal Appeals affirmed. In this Court, the
petitioner challenges admission of the juror’s testimony relating to the effect of the court officer’s
statement on the juror. After thorough consideration, we reverse the Court of Criminal Appeals.
We hold that Tennessee Rule of Evidence 606(b) prohibits introduction of juror testimony
concerning the effect on the juror of an improper communication by a court officer during jury
deliberations.

Tenn. R. App. P. 11 Application for Permission to Appeal;
Judgment of the Court of Criminal Appeals Reversed

WILLIAM M. BARKER, J., delivered the opinion of the court in which FRANK F. DROWOTA , III, C.J.,
and E. RILEY ANDERSON, ADOLPHO A. BIRCH, JR., and JANICE M. HOLDER, JJ., joined.

C. Michael Robbins, Memphis, Tennessee, for the appellant, Robert D. Walsh.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and
Elizabeth T. Ryan, Assistant Attorney General, for the appellee, State of Tennessee.
 OPINION

Facts

In 1998, the petitioner was indicted in Shelby County on charges of aggravated sexual battery
and rape of a child. A criminal court jury found the petitioner guilty of aggravated sexual battery,
but not guilty of rape. The trial court sentenced the petitioner to a term of ten years imprisonment.
Upon appeal, the Court of Criminal Appeals affirmed the conviction, but modified the sentence to
allow the petitioner to be eligible for release after serving thirty percent of his sentence, rather than
one-hundred percent as ordered by the trial court. See State v. Robert D. Walsh, W1999–01473-
CCA-R3-CD, 2001 WL 91949 (Tenn. Crim. App. Jan. 30, 2001). The petitioner was denied
permission to appeal the conviction in this Court.

In June 2002 the petitioner filed a petition for post-conviction relief, alleging, among other
things, that he had been denied his right to a fair and impartial jury trial due to an improper
communication to the jury by a deputy sheriff who was acting as a court officer. At a hearing on the
petition on May 2, 2003, one of the witnesses called to testify was Linda Busby, who had been one
of the jurors in the petitioner’s trial.

Ms. Busby testified that at one point during deliberations, she and the other jurors had voted
unanimously to find the petitioner not guilty of rape of a child. However, the vote on the charge of
aggravated sexual battery had been divided, with eleven jurors voting guilty and one voting not
guilty. Ms. Busby was the lone dissenting vote.

Sometime after this vote was taken, a court officer entered the jury room and was told by one
of the other jurors that the jury could not reach a decision on one of the charges. Then, according
to Ms. Busby, the court officer made a statement to the effect that the jury was required to make a
decision. Although Ms. Busby could not recall the officer’s exact words, she testified that he
“almost jokingly or kind of laughed [and] said, ‘you have to’ or ‘you must’ or something to that
effect. ‘You have to reach a decision.’” Ms. Busby was convinced that the other members of the jury
also heard the officer’s remark. After this exchange with the court officer, another ballot was taken,
and the jury returned a unanimous verdict of guilty on the charge of aggravated sexual battery.

On cross-examination, the State asked Ms. Busby a series of questions touching upon the
effect of the officer’s statement upon her deliberations. Pertinent portions of this cross-examination
were as follows:

Q (by the State): This motion that’s pending before Judge Bennett right now indicates
that because of what this deputy said that you, Ms. Busby, changed your vote from
not guilty to guilty.

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 A (by Ms. Busby): It was not because of what he said. I mean, it made me realize
that I did have to make a decision. But, I made the decision to change my vote, I
believe, because I’m obviously not a very self-confident person. And, I felt that if
eleven other people felt he was guilty, I thought it was something wrong with me that
I couldn’t see that.
Q: This motion says that you felt that you were required – – –
A: No.
Q: To reach a verdict and find him guilty?
A: No, I have been on other juries and I’m sorry, that’s not true.
Q: This motion also says that you felt that you had, and I’m going to quote this
directly. “Ms. Busby felt that she had to make a decision in line with the other eleven
jurors.” End of quote. Is that a correct statement?
A: No, sir.
Q: Are you telling Judge Bennett that you reached a verdict on this case and the
verdict that you did reach was your own independent verdict?
A: Yes, it was.
Q: Are you telling the Court that you found Mr. Walsh guilty of aggravated child
abuse only because of the statements made to you by the deputy?
A: No.
Q: Why did you reach the verdict that you reached, Ms. Busby?
A: Well, I think I just stated that. That after sitting there and I had everyone at the
table go around and tell me again why they felt that he was guilty. And, I just felt it
must be something wrong with me that I could not see it. And, I never did see it.
But, I felt that I needed to go with them because of that. Because of my lack of self-
confidence.

....

Q: Did anybody put any pressure on you in order for you to reach that decision?
A: No.
Q: Did anybody force you in order to get you to reach that decision?
A: No.
Q: Do you feel as if anybody engaged or exerted any improper influence upon you
in order for you to reach that decision?
A: No.
Q: Did any of the other eleven members of the jury ever state to you that they felt
they were reaching a, on voting a certain way because of what a deputy may have
said to them?
A: No.

Neither the court officer nor any of the other jurors were called to testify about these events.
Therefore, based upon Ms. Busby’s testimony, the court found that an improper communication had

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been made to the jury, but that this communication had not affected the verdict. Accordingly, the
court denied post-conviction relief on this ground.

The petitioner appealed to the Court of Criminal Appeals which, upon review, agreed that
the court officer’s statement to the jury had been improper. The court also recognized that the
improper communication raised a presumption of prejudice which the State was required to
sufficiently rebut in order to sustain the verdict. The court was of the opinion, however, that there
would be no way for the State to rebut this presumption without allowing the juror to testify about
how the court officer’s statement may have influenced her. Therefore, the Court of Criminal
Appeals held that admission of the juror’s testimony was proper and affirmed the denial of post-
conviction relief. We granted permission to appeal to address whether a juror may testify about the
effect on his or her deliberative process of an improper communication to the jury by a court officer
during deliberations.

Analysis

We first address the State’s argument that the issue of improper influence on the jury has
been waived by the petitioner due to his failure to raise it during his direct appeals. However, the
State did not assert the defense of waiver at the post-conviction hearing; instead, the State raises it
for the first time in this Court. By doing so, the State has denied the petitioner an opportunity to
rebut the presumption that this issue has been waived. See Tenn. Code Ann. § 40-30-110(f) (2003)
(providing that “[t]here is a rebuttable presumption that a ground for relief not raised before a court
of competent jurisdiction in which the ground could have been presented is waived”) (emphasis
added). Under these circumstances, we conclude that the State’s waiver argument has itself been
waived. Issues not addressed in the post-conviction court will generally not be addressed on appeal.
See Rickman v. State, 972 S.W.2d 687, 691 (Tenn. Crim. App. 1997); see also State v. White, 635
S.W.2d 396, 397-98 (Tenn. 1982) (rejecting an argument presented by the State for the first time on
appeal). We conclude therefore that the State may not properly assert the issue of waiver for the first
time in this Court.

We now proceed to the central issue in this case –whether the jury’s verdict was tainted due
to improper influence during deliberations. The parties do not dispute that the court officer made
an improper statement to the jury. The dispute centers around how the post-conviction court arrived
at its conclusion that the statement did not affect the verdict. The petitioner argues that allowing the
State to cross-examine the juror regarding the effect of the court officer’s statement impermissibly
delved into the juror’s internal thought processes and motivations during deliberations, thus violating
Tennessee Rule of Evidence 606(b). Rule 606(b) provides:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify
as to any matter or statement occurring during the course of the jury’s deliberations
or to the effect of anything upon any juror’s mind or emotions as influencing that
juror to assent to or dissent from the verdict or indictment or concerning the juror’s

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 mental processes, except that a juror may testify on the question of whether
extraneous prejudicial information was improperly brought to the jury’s attention,
whether any outside influence was improperly brought to bear upon any juror, or
whether the jurors agreed in advance to be bound by a quotient or gambling verdict
without further discussion; nor may a juror’s affidavit or evidence of any statement
by the juror concerning a matter about which the juror would be precluded from
testifying be received for these purposes.

In State v. Blackwell, 664 S.W.2d 686 (Tenn. 1984), this Court adopted Federal Rule of
Evidence 606(b), now embodied as Tennessee Rule of Evidence 606(b),1 as “the rule governing the
exclusion and admissibility of evidence to impeach a jury verdict in this State.” Id. at 688; see also
State v. Parchman, 973 S.W.2d 607, 612 (Tenn. Crim. App. 1997). We recognized in Blackwell that
Rule 606(b) was essentially a codification of established Tennessee law in this respect. Blackwell,
664 S.W.2d at 688. Rule 606(b) is “grounded in the common-law rule against admission of jury
testimony to impeach a verdict and the exception for juror testimony relating to extraneous
influences.” Tanner v. United States, 483 U.S. 107, 121 (1987). The rule promotes full and frank
discussion in the privacy of the jury room and protects jurors from harassment by the losing party
who might seek to impeach the verdict. Id. at 108. Thus, the overarching purpose of both the federal
and Tennessee Rule 606(b) is to protect the integrity of the jury’s deliberative process. See id. at
119-20; see also Caldararo v. Vanderbilt Univ., 794 S.W.2d 738, 741 (Tenn. Ct. App. 1990).2

To this end, a juror is not permitted to testify about anything occurring during deliberations,
including the juror’s own internal thoughts, motivations, or emotions. Tenn. R. Evid. 606(b);
Blackwell, 664 S.W.2d at 688. The rule does, however, make an exception in three circumstances,
allowing juror testimony if there has been: (1) extraneous prejudicial information, (2) outside
influence, or (3) an antecedent agreement to be bound by a quotient or majority result. Tenn. R.
Evid. 606(b); Cavalier Metal Corp. v. Johnson Metal Controls, 124 S.W.3d 122, 127 (Tenn. Ct. App.
2003). Further, when it has been shown that a juror was exposed to extraneous prejudicial

1
Federal Rule of Evidence 606(b) and the current Tennessee Rule of Evidence 606(b ) differ only in one
respe ct. The Tennessee rule contains the additional exception allowing for juror testimony in a case where “the jurors
agree d in ad vance to be bound b y a gam bling o r quo tient verd ict.”

2
The Caldararo court expo unded on the purp ose of the rule as follows:

[Rule 606(b)] represents a compromise between important public policies. It enables the courts to
protect the litigants from verdicts tainted by extraneous prejudicial information or outside influence.
At the sam e time, it rec ognizes the importance of the inviolate nature of a jury’s d eliberations. . . . The
rule precludes inquiries into the jury’s deliberative process while allowing juror testimony concerning
objective incidents or events that constitute external or ex traneo us influenc es on the jury. . . . Thus,
it insures that jurors will not be guarded in their deliberations for fear of later scrutiny by others. It
also prevents jurors whose views are in the minority from manipulating the system by repudiating the
verdict and thereb y requiring a new trial.

Id. at 741-42 (citations omitted).

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information or subjected to improper influence, a rebuttable presumption of prejudice arises, and the
burden shifts to the State to explain the conduct or demonstrate that it was harmless. Blackwell, 664
S.W.2d at 689; Parchman, 973 S.W.2d at 612.

Although adopted in 1984, the scope of inquiry permitted under Rule 606(b) remains an
unsettled issue in this state. In some instances the rule has been interpreted as permitting juror
testimony only as to the existence of extraneous information or outside influence and not to the
subjective effect of that information or influence on the juror’s deliberative process. See Carruthers
v. State, 145 S.W.3d 85, 95-96 (Tenn. Crim. App. 2003); Montgomery v. State, 556 S.W.2d 559,
561 (Tenn. Crim. App. 1977). In other cases, courts have permitted juror testimony not only to
establish the fact of extraneous information or outside influence, but also as to the effect of that
information or influence on the juror’s mental processes. See Cavalier Metal Corp., 124 S.W.3d at
130; Parchman, 973 S.W.2d at 614.

For instance, in Parchman, the defendant was convicted of two counts of sale of cocaine. 973
S.W.2d at 610. It was later discovered that during the jury’s deliberations a bailiff had made an
improper communication to the jury. The jury had been at an impasse regarding one of the charges,
and one of the jurors decided to inform the court. However, rather than speaking with the judge, the
juror spoke with a bailiff who informed the juror they would be required to deliberate until a verdict
was reached. The jury then voted unanimously to find the defendant guilty. When called later to
testify about the conversation, the bailiff stated that the juror had asked whether they could “find her
guilty on one charge and not guilty on the other?” The bailiff testified that his only response was,
“Yes.” The court found that regardless of what the bailiff actually said, the jurors believed that the
bailiff’s statement had been that a verdict was required. Id. at 613. This extraneous information
raised a presumption of prejudice and shifted the burden to the State to show the information was
harmless in order to sustain the verdict. Id. By presenting only the testimony of the bailiff, the court
concluded that the State had failed to sufficiently rebut this presumption, thus warranting a new trial.
Id. at 614.

Then, in dicta, the Parchman court offered that to rebut the presumption of prejudice, “[i]t
would have been possible to call the jurors to testify whether they were influenced by the statement.”
Id. However, we conclude that the intermediate court’s interpretation of Rule 606(b) in Parchman
conflicts with that of the majority of other courts having addressed the issue. The predominant view
among other jurisdictions is that juror testimony regarding the subjective effect of extraneous
information or outside influence on the juror’s internal thoughts or deliberative processes is not
permitted. See, e. g., Larson v. State, 79 P.3d 650, 654 (Alaska Ct. App. 2003); Lewis v. Pearson,
556 S.W.2d 661, 663-64 (Ark. 1977); Wiser v. People, 732 P.2d 1139, 1142 (Colo. 1987); Flonnory
v. State, 778 A.2d 1044, 1053-54 (Del. 2001); People v. Hobley, 696 N.E.2d 313, 339 (Ill. 1998);
Griffin v. State, 754 N.E.2d 899, 902 (Ind. 2001); Lund v. McEnerney, 495 N.W.2d 730, 733-34
(Iowa 1993); State v. Wisham, 384 So. 2d 385, 387 (La. 1980); State v. Cox, 322 N.W.2d 555, 559
(Minn. 1982); State v. Mann, 39 P.3d 124, 129 (N.M. 2002); State v. Lyles, 380 S.E.2d 390, 394
(N.C. Ct. App. 1989); State v. Crowell, 594 P.2d 905, 907 (Wash. 1979). This is also the law in
virtually every federal circuit to have addressed the issue. See United States v. Gonzales, 227 F.3d

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520, 525 (6th Cir. 2000); Mahoney v. Vondergritt, 938 F.2d 1490, 1492 (1st Cir. 1991); United States
v. Ortiz, 942 F.2d 903, 909 (5th Cir. 1991); Haugh v. Jones & Laughlin Steel Corp., 949 F.2d 914,
917-18 (7th Cir. 1991); United States v. Maree, 934 F.2d 196, 201 (9th Cir. 1991); Capps v. Sullivan,
921 F.2d 260, 263 (10th Cir. 1990); United States v. Small, 891 F.2d 53, 56 (3rd Cir. 1989); Stockton
v. Virginia, 852 F.2d 740, 744 (4th Cir. 1988); United States v. Sjeklocha, 843 F.2d 485, 488 (11th
Cir. 1988); United States v. Moon, 718 F.2d 1210, 1235 (2nd Cir. 1983).

A good analysis of the issue is found in Haugh v. Jones & Laughlin Steel Corp., 949 F.2d
914 (7 Cir. 1991), which involved a trial in federal district court.3 After the jury rendered its verdict
th

and was discharged, the jury foreman informed the judge that a marshal who had overseen the jury
during deliberations had told its members that there was no such thing as a hung jury. Id. at 915.
The judge held a hearing on the matter, questioning the marshal and each of the jurors to determine
if the statement had actually been made. The marshal testified that he had been asked by a juror how
long they would have to stay in the courthouse if a verdict could not be reached, to which he had
replied, “[y]ou just have to keep deliberating.” Id. at 916. Then, in questioning the jurors, the trial
court judge inquired not only whether each of the jurors had heard the marshal’s remark, but also
how the remark had influenced each juror. The judge posed questions such as, “[F]or what reason
did you [render this verdict], because you believed in the verdict or because you wanted to go
home?” Id. at 918. Concluding that there was a reasonable possibility that the statement had
influenced the verdict, the court ordered a new trial.

Upon review, the Seventh Circuit Court of Appeals held that the judge’s questions
concerning the effect of the marshal’s statement on the jurors had been improper. Id. The Court of
Appeals held that Rule 606(b) prohibited the questioning of jurors regarding the impact of
extraneous information or outside influence on their deliberations. Id. According to the court, the
proper procedure under Rule 606(b) is

for the judge to limit the questions asked the jurors to whether the communication
was made and what it contained, and then, having determined that the
communication took place and what exactly was said, to determine--without asking
the jurors anything further and emphatically without asking them what role the
communication played in their thoughts or discussion--whether there is a reasonable
possibility that the communication altered their verdict.

Id. at 917.

We agree with the foregoing interpretation of Rule 606(b). We also note that this view is
not a recent development in the law. It was, in fact, held more than a century ago that a juror “may
testify to any facts bearing upon the question of the existence of any extraneous influence, although

3
Although the court in Haugh was interpreting Federal Rule of Evidence 606(b), rather than the Tennessee
rule, the federal court’s interpretation provides helpful guidance to our o wn analysis bec ause the two rules are virtually
identical. See Caldararo, 794 S.W .2d 7 41 at n.3; Cont’l Cas. C o. v. Sm ith, 720 S.W .2d 48, 49 (T enn. 1986).

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not as to how far that influence operated upon his mind.” Mattox v. United States, 146 U.S. 140,
149 (1892). As noted, federal courts generally continue to follow the Mattox rule. See 2 Federal
Rules of Evidence Manual 905 (7th ed. 1998).

We conclude that this approach is in keeping with the goals of Rule 606(b) to protect the
integrity of the deliberative process, encourage frank and open discussion among the jurors, and
promote finality of jury verdicts. Prohibiting inquiry into the jurors’ thought processes and
motivations during deliberations also secures the proper relationship of the jury to the judge and the
law. The right to a trial in which a jury serves as the ultimate finder of fact and arbiter of guilt or
innocence “is no mere procedural formality, but a fundamental reservation of power in our
constitutional structure. Just as suffrage ensures the people’s ultimate control in the legislative and
executive branches, jury trial is meant to ensure their control in the judiciary.” Blakely v.
Washington, 124 S.Ct. 2531, 2538-39 (2004).

For the foregoing reasons, we hold that Tennessee Rule of Evidence 606(b) permits juror
testimony to establish the fact of extraneous information or improper influence on the juror;
however, juror testimony concerning the effect of such information or influence on the juror’s
deliberative processes is inadmissible. In the case now before us, we conclude that it was error for
the post-conviction court to consider the juror’s testimony regarding the effect of the court officer’s
statement on her decision making process. The juror’s testimony that the statement had been made
was properly considered and raised a presumption of prejudice to the petitioner. The only evidence
presented by the State to rebut this presumption was the inadmissible cross-examination testimony
of this juror. The State could have called the court officer to testify as to whether he actually made
the statement, or the other members of the jury could have been asked whether they heard the
statement. However, as no other proof was presented on this issue at the hearing, we conclude that
the State failed to sufficiently rebut the presumption of prejudice to the petitioner. Accordingly,
we reverse the judgment of the Court of Criminal Appeals and remand this case for a new trial.

Before concluding this issue, some additional discussion is in order. In reviewing the facts
of this case, we see no ill intent by the court officer in making the statement to the jury. It was
apparently no more than an “off the cuff” remark given during a short exchange with a juror,
without any thought of its possible effect on the jury. We realize that a court officer’s job places
him or her in a position where some informal conversation with jurors is inevitable. Therefore, we
take this opportunity to strongly caution officers against making any potentially prejudicial remarks
to jurors. In doing so, we do not intend to discourage cordial relations between court officers and
jurors. Jury service is “‘the highest obligation of citizenship [and] should be an interesting and
rewarding experience to be looked back on with interest and pleasant recollection by those who are
privileged to be selected.’” Carruthers, 145 S.W.3d at 93 (quoting State v. Pennell, 583 A.2d 1348,
1353 (Del. 1990)). To that end, the court officer’s role is vital. But at the same time, these officers
must carefully guard against making any statements of law or prejudicial comments to jurors. Court
officers act as representatives of the court, and they must recognize the official character of their
position will cause their comments to carry great weight in the eyes of the jury. Thus, we again
stress the importance of closely guarding all comments made in the presence of jurors.

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 Conclusion

To summarize, we hold that Tennessee Rule of Evidence 606(b) does not permit juror
testimony as to the effect of any extraneous information or improper influence on the juror’s
deliberations. Therefore, the post-conviction court erred in admitting juror testimony in this regard
during the petitioner’s post-conviction hearing. The court officer’s improper statement to the jury
created a presumption of prejudice which the State failed to overcome. Accordingly, the judgment
of the Court of Criminal Appeals is reversed, and the case remanded for a new trial.

Costs of this appeal are taxed to the State of Tennessee.

_____________________________
WILLIAM M. BARKER, JUSTICE

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