# FILED
September 21, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON MAY 1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. No. 02C01-9801- CC-00009 Appellee, ) ) Henry County V. ) ) Honorable C. Cree d McGinley, Judge ) ROBERT EMMET DUN LAP, JR., ) (Sale of Cocaine - 3 counts) ) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: Matthew M. Maddox John Knox Walkup Maddox, Maddox & Maddox Attorney General & Reporter 19695 East Main Street P.O. Box 430 Elizabeth T. Ryan Huntingdon, TN 38344 Assistant Attorney Gener al 425 Fifth Avenue North Nashville, TN 37243-0493 Robert “Gus” Radford District Attorney General John W. Overton, Jr. Assistant District A

ttorney General P.O. Box 686 Huntingdon, TN 38344

OPINION FILED: ___________________ AFFIRMED IN

PART; REMA

NDED PAUL G. SUMM ERS, Judge

O P I N I O N-2- The appellant, Robert Emmet Dunlap, J r., was convicted by a jury of three counts of the sale of cocaine in the Henry County Circuit Court. The court imposed concurrent sentences of ten years for each conviction. The court denied the appellant’s motion for a new trial and this appeal followed. The appella nt presen ts the fo llowing issu es for ou r review:
I. Whether the trial court erred in deny ing his motion to subpoena jurors to determine if the j ury received and r elied upon extrajudicial infor mation in reaching their verdict. II. Whether the trial court erre d i n refusing to order the state to provide him with th e criminal record of the confidential informant who testified agains t him. II I. Whether the trial court erred in deny ing his motion for a judgment of acquittal on count five of the indictment. The appellant sold cocaine to a c onfidential informant on May 8, 16,and 25, 1995. Gary Azbill , a special agent with the Tennessee Bureau of Investigation (TBI), testified that a confidential informant,Dan Grooms, set up the purchases of cocaine from the appell ant. Agent Azbill and G rooms drove to the appellant

’s house on t he three occa sions. Age nt Azbill

searched Gr

ooms and gave him money to buy the cocaine. Agent Azbill gave Grooms a microcassette recorder t o record the transactions. Agent Azbill wa ited in the car while Grooms purchased the cocaine. A recording of each transaction was introduced into evidence. The appellant’s voice w as identified on the tape. Forensic scientists w

ith the TBI lab determined that the s ubstance purchased from the appellant was cocaine in the amount of 3.3 grams, 3.3 gr ams, and 6.7 grams, respectively

.

Grooms testified that he wor ked as a confidential informant becaus e he was facing life in pri son if he did not cooperate wi th the TBI. Grooms had previously sold a quarter of a pound of marijuana to an undercover agent. He has a prior criminal r

ecord. Grooms was paid $ 100 for each buy.-3- The appellant argues that the cour t erred in denying hi s motion to subpoena jurors to determine w hether extrajudicial information was introduced t o the jury and affected the jury ’s deliberations. In suppo rt of the motion, the appellant attached the affidavit of his counsel’s secretary , Jennifer McMackin. Ms. McMackin stated that a juror, “Mrs. Riley,” told her that another of the jurors mentioned during jury d eliberations that the appella nt had a prior drug case for which he was not punis hed. Mrs. Riley r efused to submit an affidavit, sayi ng that she could not remember whether the appellant’s prior dr ug case was mentioned during or after jury

deliberations. Ms. McMackin further stated that she contacted another juror, Jeffrey Allen, who told her that he remembered a discussion about the appellant’s prior drug case, but said that it did not af fect his decision to convict the appellant. Ms. McMacki n stated that Mr. Allen re fused to sign an affidavit unless al l the jurors were c alled into court.
The trial court was clearly concerned about the appellant’s right to a fair trial as well as pr

eserving the ver

dict of the jury from speculat ive allegations of misconduct. The trial court denied the appellant’s mot ion to subpoena the jurors, stating that an appellant must offer an affidavit of a juror showi ng juror misconduct before the court will issue a subpoena for any jury member. Many reported and unreported Tennessee cas es address the issue of wheth er the information in a juror’s affidav it or testimony is admi ssible or sufficient to merit a new trial. See, e.g. , State v. Coker , 746 S.W.2d 167 (Tenn. 1987); State V. Blackwell , 664 S.W.2d 686 (Tenn. 1984); State v. Dozier , No. 02C01-9610-CC-00357 (Tenn. Cr im. App. filed at Jackson, Nov . 4, 1997); Patton v. Rose , 892 S.W.2d 410 (Tenn. Ct. App. 1994); Caldarar o v. Vande rbilt Univ. , 794 S.W.2d 738 (Tenn. Ct. App. 1990); State v. Hailey , 658 S.W.2d 547 (Tenn. Crim. App. 1983). See generallyNeil P. Cohen et al., Tennessee Law of Evidence § 606.1-.2, at 328-36 (3d ed. 1995) . We were unable to find any Tennessee decisions addressing what evidence must be presented to merit-4- questioning jurors about narrowly draw n issues of jury misconduc t, as distinquished from evidence warranting a new trial.
We begin our analysis by rev iewing what ev

idence is admissible to impeach a jury verdict at a motion for new trial. Tennessee Rule of Evidence 606(b) provides:
InquiryInto Validity of

Verdict or Indictment. Upon an inquiry into the validity of

a verdi ct or in dictment, a jur or may n ot testify as to any matter or statement oc curring dur ing the course of the jury's deliberati ons or to th e effect of anything upon any juror's mind or emotion as influencing that juror to assent to or dissentfrom the verdict or indictment or concerni ng the juror's mental processes, except that a juro r may testify on the question of whether extraneous prejudicial information was improperly brought to the jury's attention, whether any outside influence was improperly br ou ght to bear upon any juror, or whether the juror s agreed in adva nce to b e bound b y a quotient or gambling verdi ct without f u rther discussion; nor maya juror's affidavit or ev idence ofany statement by the juror concerning a matter about which the ju ror would be precluded from testifying be received for these purposes. Id. (emphasis added).

Extraneous information incl udes a juror’s personal k nowledge of an accused’s prior crimi nal record or arrest. See Cohen, supra , § 606.2 at 333.d. 1995). The information would be pr ejudicial if it influenced the jury’s verdict

. See Patton v. Rose , 892 S.W.2d 410 (Te nn. Ct. App. 1994). Of course, a juror’s personal knowledge w

ould have to be divulg ed to influence the jury’s verdict. The prior conviction or arrest would be personal information directly involved in the prosecution of the accused, but n ot in evidence. See Caldararo v. Vanderbilt Univ. , 794 S.W.2d 738, 744 (Tenn. Ct. App. 1990).
Having determined that a juror’s revelatio n of an accused’s prior arr est or conviction not in ev

idence to other members of the jury is extraneous information about which jurors may testify, we must next determine whether Ms. McMackin’s affidavit is sufficient evidence to verify further investigation by the trial court. Ms.-5- McMackin’s statements about what the two jurors told her is hearsay and would be insufficient evidence to justify a new trial. The nature of the admissible evidence, that the appellant w as arrested in a prior d rug case and not punished, is potentially substant ially prejudicial . Two jurors admitted that the information was discus sed, albe it one jur or equivoca lly stated so. Neithe r juror woul d give the appellant an affidavit. One juror refused to give an af fidavit unless the entire jury was questioned. Requiring a defense attorney to present a juror’s affidavit of prejudicial misconduct to h ave the trial court q uestion jurors about the misconduct places the defense in a di fficult situation. Jurors may admit that they received extraneous i nformation but refuse to give an affidavit for fear of the reaction of the other jurors or the community. Indeed, if th e defense could produce an affidavit, then it may have simultaneously pr oven its right to a n ew trial.

We are mindful of the discretion of the trial court and the inviolate nature of jury verdicts. However, where as here, the defense has come forwar d with evidence of potentially prejudicial extraneous information, the trial judge sho uld investigate the matter further to ensure that the defe ndant has received a fair trial. A trial judge is g enerally in the best posi tion to evaluate the critical question of w

hether the jury’s ex

posure to extrarecord evidence prejudi ced the defendant. Thus, when there is an issue with regard to the propriety of a jury’s conduct, it is the responsi bility of the trial j udge to insure that the jury’s verdi ct is in no way tai nted by improper outside influences; as a rule, in every case where the trial court learns th at a memb er or mem bers of t he jury may h ave received extra-r

ecord information with a pote ntial for substantial prejudice, the trial court must determine whether the members of the jury have been prejudiced, and, having become aware that extri nsic influence or information may have been brought to bear upon the jury, must inves tigate the alleged wrongdoi ng. The trial court has w ide discretion in deciding how to pur

sue an inquiry into the nature and effect of extra-record information that comes to a juror. The judge’s broad discreti on in this regard ex tends to the decision whether to summon and investigate jurors due to alleged exposure to pr

ejudicial information or impr oper outside influence. Potentially suspicious circumstance s do-6- not justify such an inqui ry. Something more than unv erified conjecture must be shown. 75B Am. Jur. 2d Trial § 1640 (1992).

This case does not authorize fishing exhibitions i nto jury deliberations

. We are aware that Ms. McMackin’ s affidavit contains littl e evidence of the prejudice. We are also aware that the evidence of guilt in this case is substantial. We are not, however, willing to endorse a rule that requires a defendant to produce the affidavit of a juro r just to have the court inquire into the verdict where, as here, the alleged information is extraneous and the fact tha t it was revealed during

deliberations was st

ated by two jurors to the affiant. Therefore, we remand this case to the trial judge to inv estigate the following question s in the ma nner tha t the judg e sees fi t: (1) did t he jury rece ive information from a juror about the appe llant’s past criminal history, and (2) did the information influence a juror’s verdict. If the answer to both of these questions is in the affirmativ e, then the trial judge sha ll order a new tria l.
The appellant argues that the tr ial court erred by fail ing to order the state to disclose the prior cr

iminal record of confidential i nformant Grooms. The appellant admits that the state i s not required to prov ide a defendant with the criminal records of the stat e’s witnesses. See State v. King , 718 S.W.2d 241 (Tenn. 1986); State v. Workman , 667 S.W.2d 44 (Tenn. 1984). The appellant contends that the state’s failure to provide Grooms’ criminal record violates his right to due process under Brady v. Maryl and , 373 U.S. 83 (1963).
A panel of this Court recentl y addressed this issue in State v. Copeland , No. 01C01-9703-CR-00085 (Tenn.Crim. App. filed at Nashv ille, Apr. 3, 1998). In Copeland , the appellants contend ed that t he state ’s failu re to inform them of a confidential informant’s record violated their rights to due process und er Brady , meriting a new tria l. The Court stated:-7- In B rady , the United States Supreme Cour t held that “suppression by the prosecution of ev idence favorable to an accused upon request violates due process where the evidence is materia l either to guilt or to punishment, irrespe ctive o f the good faith or bad faith of the prosecut ion.” 373 U.S. at 87. Evid ence fa vo rable to an accused includes that which may be used to i mpe ach th e prosecution's witnesses. Giglio v. United S tates , 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Howev er, “The evidence is mater ial onlyif there is a reasonable probability that, had the evidence been di sclosed to the defense, the result of the proceedi ng woul d hav e been different. A 'reasonable probability' is a probability

sufficient to undermine confiden ce in the outcome.” United States v. Bagley , 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Copeland , No. 01C01-9703-CR-00085 ( Tenn. Crim. App. filed at Nashv ille, Apr. 3, 1998).

The Court in Copeland found no merit to the appellant’s issue because the confidential informant’s cri minal record was not mater ial to the outcome of the trial. The Court noted that the defense established the confidential informant as a paid “snitch.” The Cour t also noted that the testimony of the officer who accompanied the informant on the drug buy was the same as th e informant’s testimony. In other words, the appellants failed to establish a reasona ble probability that the res ults of the trial would h ave been different if they had been provided the criminal r

ecord of the informant.

Likewise, in the case at bar, Grooms’ criminal record was not material to the outcome of the case. On cross-examination, Grooms testified that he had a prior felony conviction for aggravated ass ault. When asked whether he had any other felony

convicti ons, Grooms r eplied, “Y

ou would hav

e to check on my records. I just don’t know.” Grooms clearly a dmitted that he had other convictions. Grooms admitted that he was a paid “sn itch.” Grooms admitted that he was cooperating with the TBI to avoid life in prison. In addition to Grooms’ testimony, the microcassette tapes and the testimon y of Agent Azbill are evidence of the transactions. We do not believe that the results of the-8- appellant’s trial w

ould have been different had he prov ided the complete criminal record of Grooms to the appellant. This issue is witho ut merit.
The appellant states in his las t issue that the trial cour t erred in denying his motion for a judgment of acqui ttal on count three of the indictment . Count three of the indictment charges the appellant with sell ing cocaine on May 16, 1995. The appellant’s “argument” discusses count five of the indictment which charges the appellant with selling cocaine on May 25, 1995. The evidence is sufficient to support the convi ctions for both counts. We will addres s the appellant’s “argument.” The appellant argues that ther e is no evidence that Grooms purchased cocaine from the appellant on May 25th, other than “a poor quality audio tape w

hich does not indicate on its face” that Grooms purchased cocaine from the appellant.
When the trial court is presented with a motion f or judgment of acquittal, the only concern is the l egal sufficiency, as opposed to the weight, of the evidence. See State v. Campbell , 904 S.W.2d 608 (Tenn . Crim. App. 1995). To determine whether the evi dence is insufficient to sustain the conviction, the tri al court must consider “the ev idence introduced by both par ties, disregard any evidence introduced by the accused that conflicts w ith the evidence adduced by the State, and afford the State the strong est legitimate view of the evidence, including all reasonable inferences which may be drawn from the evidence.” Id. (citing State v. Blanton , 926 S.W.2d 953, 957-58 (Tenn. Crim. App. 1996); State v. Hall , 656 S.W.2d 60, 61 (T enn. Crim. App. 1983)).
The evidence is sufficient to support the appellan t’s conviction for the sale of cocaine to Grooms on May 25, 1995. Agent Azbill tes tified that he and Grooms went to the appellant’ s residence to purchase coc aine on May 25th. Agent Azbill testified

that he searched Grooms and gav e him a microcassette recorder and money to buy the cocaine. Grooms returned with two “bagg ies” of-9- cocaine and the recorder. The t ape of the transaction was introduced into evidence. Agent Azbi ll identified the voices on the tape as those of the appellant, the appellant’s w ife, Grooms, and two unidentified voices of persons who left before the transaction. The substance purchased was identified as cocaine. Although the transaction is unclear on the tape, Agent Azbill’s testimony, along wi

th that of Grooms, is sufficient ev idence to support the conviction. Grooms testified that on one occasion he purch ased a quarter of an ounce of cocaine which w as packaged in two plas tic baggies from the appell ant. Grooms testified that two peopl e were leaving th e appellant’s house on the day that he purchased the two “baggies” of cocaine from the appellan t. This issue is without merit.

This case is remanded to the tri al court for proceedings c onsistent with this opinion. Aside from the issue on remand, the judgm ent of the trial court is affirmed in all respects.

_____________________________ PAUL G. SUMMERS, Ju dge
CONCUR:

_________________________ JOHN H. PEAY, Judge

_________________________-10- THOMAS T. W OODALL, Judge