### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE December 12,

2000 Session
STATE OF TENNESSEE v. ORLANDO CRENSHAW
Appeal from the Circuit Court for Lawrence County No. 20944 Stella L. Hargrove, Judge

No. M2000-01459-CCA-R3-CD - Filed June 1, 2001

The defendant chal

lenges his convi

ction for attemp

ted first degree murder, contending that the evidence was insufficient, the trial court should have granted a change of venue due to pe rvasive pretrial publicity, th

e trial court shou

ld have accepte

d the jury’s

statement that it

could not return a unanimous verdict after it revealed its numerical division, and the jury was tai nte d by extraneous information. We affirm the judgment of conviction. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

J OSEPH M. T IPTON , J., delivered the opinion of the court, in which J ERRY L. S MITH and T HOMAS T. W OODALL , JJ., joined. Richard McGee, Nashville, Tennessee, for the appellant, Orlando Crenshaw.

Paul G . Sum mers, Attor ney Gene ral an d Repo rter; Jenn ifer L. Smith, Assistant Attorney General; T. Michael Bottoms, District Attorney General; Robert C. San ders, As sistant District Attorney General; and James G. White, As sistant Distr ict A ttorney General, for the appellee, State of Tennessee.

OPINION

The defendant, Orla

ndo Crenshaw, app

eals a s of right his conviction by a jury in the Lawrence County Circuit Court for criminal responsibility for attempted first degree murder, a Class A felony. The trial court sentenced him to twenty -five years

in the Department of Correction as a Range I, standard offender and imposed a forty -thousand-dollar fine. Thedefendant conte nds that: (1) the evidence is insufficient to support his conviction; (2) the trial court erroneously denied his motion for a change of venue;-2-

(3) the trial court should have accepted the jury’s announcement that it could not reach a unanimous verdict; and (4) the jury was influenced by extraneous information. Discerning no harmful error, we affirm the trial court’s judgment of conviction.

This case arises out o

f the September 19

98 sh oo ting and beating of Angelo Wilson, a confidential drug informant. At tri al, th e thir ty-one -year-o ld vi ctim t estif ied as follo ws: In September

1998, he earned extra

money by working

as a confidential drug informant for Lawrence County and Lawrenceburg City la w enforcement agencies. In the course of this employ ment, he bought drugs from

the defendant, whom he knew, and these purchases were recorded on audiotape andvideotape. He ha

d known the defen

dant’s family

for years and came acros s the defendant’ s aunt, Letha Davis, during his

undercover work. The state brought charges aga inst the defendant as a r

esult of these drug transactions, and the defendant

received some of the recordings of the drug purchases through discovery. In the summer of 1998, the victim was drinking beer with the defendant at the AmericanLegion Club when the defendant said that if a nyone “jam him up,” he would have that person killed or he would d o it. He said that David Hogues and Ernest Bumpus were present when the defendant said this. Later, someone delivered a copy of an audiotape featuring the victim buying drugs from the defendant to the house that the victim shared with his mother, Mary Wilson.

The victim testified thatthe afternoon of September 9, 1998, he visited h

is brothers on Fif

th Street where he saw his friend Butch Osepczuk, whom he had known since childhood. He walked withOsepczuk to

the Traveler’s Motel, where Osepczuk was staying, and the y talked for a while. The victim was scheduled to wor k the 11:0 0 p.m. to 7:00 a.m. shift that night, and he asked Osepczuk for a ride to work. Osepczuk called a friend with a car, and no t long after dark, Terry Polidoro arrived in a silver, four-door Mercury. Osepczuk and Polidoro agreed to take the victim to work after they made a few stops. After stopping by a bridge and at a store, th ey said that they hadto make a deal with

someone and aske

d the victim to

wait beside the road because they did not want him to see whom they were meeting.

The victim testified that Polidoro and Osepczuk returne d a short time

later and that Osepczuk said, “Come on. Let’s go. We’re ready .” As he approached the car, Osepczuk started shooting, and a bullet struck his r

ight leg near

his hip. He heard m

ore shotsfired as he ran into a bean field. He fell, and Polidoro and Os

epczuk began fi

ghting and stru

ggling with

him. Polidoro held him whil e Osepczuk hit his head with the gun. Polidoro swung a board at him and the

n held him again w

hile Osepczuk continued to hit him on the head. During the attack, he asked Osepczuk why he

was doing this, and Osepczuk replied, “You’re dead.” Eventually, the victim stopped struggling and pretended to be dead. Polid

oro told Osepczukto stop because the victim was dead and that they should go. The victim heard two car doors slam and the car leave. He then walked to the closest house where the residents hel

ped him.-3-

The victim testified that he was flown to Vanderbilt Hospital where he remained for

two to three days. He had been shot seven times and struck with a gun and a board from the nape of his neck to the front of his head. His head injuries required over one hundred staples. The victim had notconducted any undercover work related to Osepczuk or Polidoro and knew of nothingthat would have provoked the shooting and beating. He admitted that he had used coca ine and marijuana on his birthday which was a couple of day s before the attack. Special Agent Wayne W esson of the Tenne ssee B ureau of In vest igation (TBI) testified as follows: On Septemb er 10, 1998, he assiste d Investiga tors Fo riest and Dickey from the Sheriff’s Department

in the investigation of

the September 9 shooting and beating of the victim. He found five .45 caliber shell casings in the road at the crime scene. He located a three to five foot trail into the b ean field which w

idened after twe

nty or thirty

yards. The

beans were tra

mpled down in this area, which contained spots of blood. Three smaller trails led from the widened area to the road. He found the victim’s keys, sunglasses, and shirt in the bean field. He found a piece of another shirt,
c ontaining a pa ck of Marlboro ci garettes, whic

h he later learn

ed belonged to Osepczuk. He also found a pie ce of a two by four board which appeared to have been sharpened on one end an d ha d blood on it. A search of Osepczuk’s motel room reveal ed a .45 caliber bullet. Agent Wesson returned to the bean field a day or two later with Polidoro. After talking with Polidoro, he went to nearby Trip Road where he found another piece of Os ep czuk’s shirt and Polidoro’s shirt. On September

15, he took a statement from the victim. The statement was entered into evidence and is s ubs tan tia lly s imi lar to t he v ict im’ s tr ial tes tim ony. Agent Wesson testified that telephone records revealed that on September9, several calls
were made between the Traveler’s Motel and the Park

View Motel, where Polidoro was staying. At 10:31 p.m. on September 9, someone at the Traveler’s

Motel called the a

partment of L

etha Davis, the defendant’ s aunt. Aro und midni ght on the ni nth, calls origi nat ing from the Park View Motel
were made to Ms. Davis’s apartment. A t 12:13 p.m. on September 10, a call was made from the homeof Genevive Smith to the defendant’s home. The police arre sted Osepcz uk at Ms. Smith’s homearound 2:30 p.m. Agent Wessonadmitted that Osepczuk had no money when arrested and that the police found no money in Osepczuk’s motel room. The police arrested Polidoro on September 11 and searched his room. They found no money in his room or on his person.

JennieV. Douglas testified as follows: The da

y after the victim was shot, Ose

pczuk came to her house. After he used her teleph one, the defe ndant came to her house. The defendant and Osepczuk spoke in the kitchen, but she did not hear the conv

ersation. Osepc

zuk did not have a gun, andshe d id not see h im give anything to the defendant. She did not see the defendant with any money. After the defendant left, the police came and a rrested Osepczuk.

Daniel Freemon, an attorney, testifi ed a s follows: He repr

esented the defe

ndant in some pending charges. In 1 998, he filed a motion for discovery, and on May 27, 1998, he received audiotapes and videotapes in res ponse to this motion. H

is paralegal g

ave the tapes to

the defendant
on June 3, 1998, and the defendant returned them on June 4, 1998. Mr. Freemon later reviewed the recordings and identified the victim on a portion of one of them.-4-

Stephen R. Perry testified as follows: He was acquainted with the defendant, and Osepczuk is his stepson. In March or April 1998, he met the defendant and “Boo” Hasse

ll at a drug store

in Lawrenceburg. He approached the defendant, who was in his car, and asked about b uying some
crac k cocaine. The defendant said that he was no longer in that business because of an audiotap e of s omeone from the po

lice buying

crack cocaine

from him. The defe

ndant said that he g

ot th e audiotape from his lawyer and that the tape contained the victim and Peter Owens buying

drugs from him. The defendant f

eared prosecu

tion for sellin

g drugs and d id not want to go to jail. The defendant asked Mr. Perry

if he knew someone who could help him take care of the victim and Mr. Owens. Mr. Perry told the defendant that he did not know anyone

and that he would not do it. Mr. Perry admitted that after this

conversation, he and Mr. Hassell sold some of Mr. Hassell’s pills and that Mr. H assell bought some crack cocaine. Mr. Perry used c rack cocaine that day and had been using it for a whi le. Thre e or four days after talking with the defendant, Mr. Per ry told a police officer about the conversation. De spite his frequent contact with law enforcement and prosecutors stemming from his job as a bounty hunter, he did not me

ntion the conversa

tion again until a

fter his stepson, Osepczuk, had been arrested and charged with attempted murder. Gary Claude White testified as follows: He painted part of the defendant’s house in March
or June of 1998. The defe ndant offered h

im ten thousand dolla

rs to “do [the victim] in

” because the defendant thought that the victim was an undercover agent who was going to turn him in to the police. On cross-examinat i on , Mr. White admitted that he told Investigator Dickey that the conversation occurred in the summer of 1998 and that he later told Agent Wesson that it occurred in April or May. He acknowledged that he used crack cocaine daily and abused alcohol in the spring of 1998. His substance abuse problems continued into 1999 when he gave the statements to Dickey andWesson. Three we

eks before tria

l, he was under the influence of alcohol when he stole prop

erty from a Wal-Mart.

RichardPerry, Ose

pczuk’s brother, t estified as follows: On the day he returned from National Guard training

in June or J uly 1998, Osep czuk and th e defendant, whom he knew from high school, were in his living room listening to an audiotape. Osepczuk told him that the audiotape had the victim on it, and neither Osepczuk nor the defendant seemed upset or angry. The def endant left three to five minutes later. About two weeks later,

he was exercising

with the defenda

nt and could tell that something was bothering the defendant. The defendant told him that the victim was on the audiotape and said that the victim was trying to “snitch [him] out” for selling drugs. The defendant said that he never sold

drugs to the victi

m and that he was not on the audiotape. The defendant asked him if he knew of a good lawyer from their area. The defendant left about ten minutes later. Mr. Perry admitted

that his statement to Agent Wesson states that the defendant told him that he had a witness who was going to testify against him and that he had to do something about it. He said that the defendant actually said that he had to do something about it, he had to get a good lawyer.

BenJordan, the boyfriend of the victim’s mother, testified as follows: The Wilsons and the Crenshaws had known each ot her for a long ti

me. In the fa

ll of 1998, he was cleaning his car outside the victim’s mother’s house whenthe defendant arrived and asked him to listen to something. He listened to an audiotape of the victim. The defendant gave him the tape and asked him to t ell the-5-

victim’s mother what the victim hadbeen doing. The defendant said he had more tapes and that Mr. Jordan should tell the victi m that “if I we

re him, I would

just forget what is going on.”He admitted that the defenda

nt never threate

ned to shoot, kill, or

do anything

to the victim.

David Tyrone Hogues testified as follows: He knows the victim, the defendant, a

nd Earnest Bumpus. He occasionally drank beer at the American L egion Club when the defendant was there. He never had

a conversation w

ith the defendant

, the victim, and Mr. Bumpus in which the defendant said that if anyone “jam [him] up,” the defendant would have to kill that person.

I. SUFFICIENCY OF THE EVIDENCE

The defendant conte

nds that the evidence i s insufficient to support his conviction for criminal responsibility

for attempted first degree murder. He argues that the evidence presented at trial shows at most that he was merely associated with the men who attempted to kill the victim. He likens his
case to that of State v. Transou , 928 S.W.2d 949 (Tenn. Crim. App. 1996). There, the court held that the mere presence of the def endants in th

e apartment where the police found the drugs or the defendants’ me re association with the apartment owner was not sufficient to support a conviction for possession of coc

aine for resale

. Id. at 956. In this ca se, the defenda

nt contends that the

only evidence linking him to the crime was the p ossibility tha t he had telephone

conversations wi

th Osepczuk or Polidoro around

the time of the atte

mpted murder and t

he fact that he w

as briefly in Osepczuk’s company the

next day. He a

sserts that this

circumstantial evidence showing his mere association with the perpetra tors is insufficient to exc

lude every

other reasonab

le hypothesis except that of his criminal responsi

bility for the

ir actions. The sta

te contends that the e

vidence is suffic

ient.

Our standard

of r eview when the su

fficiency of the evidence

is questioned on ap

peal is “whether, after viewing

the evidence in th

e light most favor

able tothe prosecution, any rational trier of fact could hav

e found the essen

tial elements of th

e crime beyond a re

asonable doubt.” Jackson
v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). This means that we do not reweigh the evid ence but presume that the jury has resolved all conflicts in the testimony and dr awn a l l reasonable

i n ferences from the evidence in favor of the state. See State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 198

4); State v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978).

It is well established that circumstantial evidence al one may be suff icient to support a conviction. Statev. Richmond , 7 S.W.3d 90, 91 (Tenn. Crim. App. 1999); State v. Buttrey , 756 S.W.2 d 718, 721 ( Tenn. Crim. App. 1988). However, this circumstantial evidence “‘must be not only consistent with the guilt of the accused bu t it mus t also be inconsistent with his [or her] innocence and must exclude every other reasonable theory

or hypothesis except that of guilt.’” State
v. Tharpe , 726 S.W. 2d 896, 900 (Tenn. 1987 ) (quoting Pruitt v. State , 3 Tenn. Crim. App. 256, 267, 460 S.W.2d 385, 390 (1970)). In this way, the circumstantial evidence “‘must establish such a certainty of guilt of the accused as to convince the mind beyond a rea sonable doubt that [the defendant] is the one who committed the crime.’” Id. at 896 (quo ting Pruitt , 3 Tenn. Crim. App. at 267, 460 S.W.2d at 390). While following these guidelines, we must note that the jury decides the weight to be given to circumstantial evidence and that the “inferences to be drawn fro m such-6-

evidence, and the extent to which the circumstances are consistent with guilt and inco

nsistent with innocence, are questions primarily for the jury.” Marable v. State , 203 Tenn. 440, 452, 313 S.W.2d 451, 457 (1958).

Criminal attempt requires that one ac t “with t he kind of culpability otherwise required for the offense . . . [and] with intent to cause a result that is anelement of the offense, and believes the conduct will cause the result without further conduct on the person’s part.” Tenn. Code Ann. § 39- 12-101(a)(2). First degree murder isthe “premeditated and intentional killing of another.” Tenn. Code Ann. § 39-13-

202(a)(1). Pre

meditation is defin

ed as:

an act done after the

exercise of reflection and judgment. “Premeditation” means that the intent to kill must have been formed prior to the act itself. It is not necessary that the purpose to kill pr e-exist i n the mind of the accused for any definite period of time. The mental state of theaccused at the time the accu

sed allegedly

decided to kill must be carefully considered in order to determine whether the accused was sufficiently free from excitement and passion as to be capable of pre meditation.

Tenn. Code Ann. § 39-13-202(d). Theelement of premeditation is a question for the jury and may be established by proof

of the ci rcumstances surrounding the killing. State v. Bland , 958 S.W.2d 651, 660 (Tenn. 1997). Our supreme court has delineated the following factors that demonstrate the exi stence of premeditation: the use of a dead ly weapon up

on an unarmed vic

tim, th e particula

r cruelty of the killing, declarations by the defendant of

an intent to kill,

evidence of procurement of
a weapon, preparations before the killing for concealment of the crime, and ca

lmness immediately after the killing. Id.

Viewed in the light most favorable to the state, the victim’s testimony reveals that Osepczuk andPolidoro intentionally attempted to kill him. The men lured him to a secluded location with the promise of a ride to work

. Osepczuk called for the victim to get in the car, began shooting at the victim as he approached, and continued to fire at the victim as he fled. Osepczuk and Polidoro pursuedthe victim into the be an field and beat him with the gun and a two by four until they believed him to be dead. During the

beating, Osepczuk

told the victim “You ’re dead.” Be lieving that their conduct had caus

ed the victim’s dea

th, they lef

t the bean field. N

o evidence exists th

at the victim possessed a weapon or had threatened or provoked th e men in any way befor e the incident. The evidence reveals that Osepczuk and P olidoro atte mpted to commit first degree murder. We now examine whether sufficient evidence exists to hold the defendant criminally res ponsible for their actions.

One is criminally responsible for a crime committed by

another if by

acting “with inte

nt to promote or assist th e commission of the offense, or to benefit in the proceeds or results of the offense, the person solicits, dir ects, aids, or att

empts toaid another person to commit the offense.” Tenn. Code Ann. § 39-11-402(2)

. Common law principles governing aiders and abettors are embraced by the statutory provisions for criminal responsibility

. Id. , Sentencing Comm issi on Comments; State v. Carson , 95 0 S.W.2d 951, 955 (Tenn.1997). To be criminally responsible for-7-

the acts of another, a defendant must “‘in som e way assoc

ia te himself with the v

enture, act with knowledge that an offense is to be committed, and share in the criminal intent of the principal in the first degree.’” State v. Maxey , 898 S.W.2 d 756 , 757 (Tenn. Crim. App. 1994) (quo ting Hembree
v. State , 5 46 S.W.2d 235, 239 (Te nn. Crim. App. 1976)

). In other wo

rds, the defenda

nt must “‘kn owi ngly, voluntarily

and with common inte

nt unite with the principal . . . in the commission of the crime.’” Maxey , 898 S.W. 2d at 757 (q uoting State v. Foster , 755 S.W.2d 846, 848 (Tenn. Crim. App. 1988)). The requisite criminal intent may be inferred from the defe ndant’s “presence, companionship, andconduct before and after the offense.” State v. McBee , 644 S.W.2d 425, 428-29 (Tenn. Crim. App. 1982).

The defendant contends that nothing links him to the attempted murder other than his mere association withOsepczuk a nd Polidoro. The state contends that the evidence shows that the defendant sought to have the victim killed because the victim was a witness ag ainst him i n the pending dru g cha rges . It a rgue s th at t he d efen dan t ap pro ache d Ga ry Cla ude White and Stephen P erry, Osepczuk’s step-father, about “taking care of” the victim. It points to the defe ndant’s previous threat to the victi mthat if anyone “jam

him up,” he would kill that person or have someone kill him. The state maintains that these conve rsatio ns along with the telephone calls from the Traveler’s and Park

View Motels to

the home of the def

endant’s aunt on th

e evening of the

offense andthe fact that the d e fendant met with O sepczuk the morning after the offe

nse are suffici

ent to support the conviction.

The defendant’s mer

e association with

Osepczuk and Polidoro does not prove that the defendant solicited them to

kill the victim with the intent that he would benefit from the results of the killing. On t he other hand , “[p]resence and companionship with the perpetrator of a felony before and after the commission of the offense are circumstances from which one’s participa

tion in the crime may be inferred.” State v. Ball , 973 S.W.2d 288, 293 (T enn. Crim. App. 1998

). In this respect, the telephone calls from Osepczuk’s and Polidoro’s motels to the defendant’s aunt’s home within hours of the offe

nse and especia

lly the defe

ndant meeting Os

epczuk the next day

at Jennie Douglas’s home are circum stances from w hich the jury could infer his involvement in the crime.

In Ball , the defendant and co-defendant drove to a club and spoke with some women in the parking lot. After the women left, the co-defendant broke into a truck and drove away at high speed. The defend ant followed the co-defendant out of the parking lot but did not stop when the codefendant wrecked a short distance away. The defe ndant was convicted of theft of property based upon his criminal responsibility for the co-defendant’s act io ns. This court held that although the defendant’s following the co-defendant was incriminating, it was insufficient to prove that the defendant ass ist ed or encouraged the offense. Id. at 294. The present case can be distinguished because circumstantial evidence exists that the defendant encouraged or solicited the offense

. In the present case, the telephone calls and meeting do not constitute the sole evidence from which the jury could infer that the defendant solicited Osepczuk and Polidoro to commit the offense. Gary Claude White and Stephen Perry testified that the defendant was looking for someone to kill the victim. Mr. White, who worked on the defendant’s house in the spring or summer of 1998,-8-

testified that the defendant offered him ten thousand dollars to “do [the victim] in.” Ste phe n Pe rry, Osepczuk’s step-father, te stified that in

March or April of 1998, the defendant asked him if he knew anyone who could ta

ke care of the victim. The defendant argues that these witnesses were selfadmitted crack cocaine addicts. Their admitted drug use goes to their credibility , a matter reserved for the jury. See State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App.1987).
Furthermore, the jury could have reasonably inferred that the defendant had a motive to have the victim killed. The victim, aconfidential drug informant, participated in several controlled drug purchases from the defendant. These purchases were recorded, and after be ing charged

with these crimes, th e defendant r eceived reco rdings of the drug tran sactions in

discovery. The testimony of BenJordan and Richard Perry reveals that the defendant had identified the vi ctim’s voice on the audiotape. Stephen Perry testified that the defendant feared prosecution for the drug charges and di

d notwant t o go to jail. Finally, the victim testified that in the summer of 1998, the defendant had threatened

to kill or have killed anyone who “jam him up.” This evidence reveals that the defendant wantedto have the victim kill ed in order to elimi

nate the victim as a

witness against h

im in his drug
cases.
As this court noted in Ball , in

convictions such as [this], where the evidence is

entirely circumstantial, t

he jury must find that the proof is not only consistent with the guilt of the accused but inconsistent withhis innocence. There must be an evidentiar y basis upon which the jury can exclude every

other reasonab

le theory or

hypothesis e

xcept that of guilt.

973 S.W.2d at 292. In that case, this court noted that the evidence supported the d efen dant’s probable guilt but that it wa

s insufficient.The evidence failed to show that the defendant in Ball knowingly

controlled the stolen truck, intended for the co-defendant to control it, or

participated in
a common plan or s chemeto control it. Id. at 293. The co-defendant did not testify against the defendant,

and the evidence

suggested tha

t it was just as likely

that the co-defendant stole the truck of his own initiative ra

ther than with

the defendant. Id. On the other hand, in the present case, the evidence supports the inference that Osepczuk and Polidoro acted at the defendant’s request rather than on their own. The victi m testified that he was friends with Osepczuk, whom he had known since childhood. He testified that he had not performed any undercover work involving Osepc zuk
or Polidoro and that he knew of nothing that he had done to provoke the s hoot ing and beati ng. Fin all y, although neither Osepczuk nor Pol idoro testified against the defendant, Richard Perry testified that in June or July of 1998, he came home to find the defendant and Osepczuk l isteni ng to an audiotape. Mr

. Perry said

that Osepczuk told

him that the audiotape was of the victim. Mr. Perry said that two weeks later, the defendant, who was visibly up

set, told him the vict

imwas on the audiotape and was trying to “snitch [him] out” for selling drugs. This evidence provides a basis for the jury to conclude reasonably that Osepczuk and Polidoro acted at the direction of the defendant rather than on their own.-9-

Viewing the evidence in the light most favorable to the state, the defendant feared pr o secution on drug charges because the victim, a police informant, had recorde d the defendant selling him drugs. The defendant offered Gary Claude White ten thousand dollars to

kill the victim andasked Stephen Perry if he knew any one who woul d kill the vict im. A little over two months before the offense, the defendant played the audiotape of the drug transaction for Osepc zuk. The defendant told the victim that if an

yone jammed

him up, he would kill

the person or have him killed andsubsequently delivered the audiotape of the drugtransaction to the victim’s mother’s house. Ben Jordan testified that the defendant told him that the victim should forget what happened. Within a few hours of the murde

r attempt, telepho

ne callswere made from Osepczuk’s and Polidoro’s motels to the defendant’s aunt’s house. The following day, the defendant met with Osepczuk. The evidence is sufficient for the jury to find that the defendant was criminally respo ns ible for attempte d first degree murder.

II. VENUE

The defendant conte

nds that the trial court erroneously denied his motion for a change of
venue because pretrial publicity about the case tainted

the jurors. He ar

gues that The Advocate, the newspaper

purporting to have the largest circulation in Lawrence County, ran

a front-page article on co-defendant

Butch Osepczuk’s trial two weeks be fore histrial began. He maintains that potential jurors should be expected to obviate the consequences that pretrial publicity wi l l have on their judgment by stating t

hat it w ill not affect them. He contends that alleged extraneous information gleaned from pretrial publicity influenced the jurors in this case, deny ing his right to a fair

trial. The state contends t hat the defe ndant has wa ived this i ssue by failin g t o i nclude the voir dire in the record, thereby failing to show that the potential jurors were familiar with the publicity or that he exhausted his peremptory challenges. Alternatively , it argues that the defendant has failed to show that the trial court abused its discretion in denying his motion for a change of venue because he has not shown that the ju

rors were biase

d against him.

The decision of wheth

er to grant a mot

ion for a chang

e of venue based

on pretrial public

ity rests within the sound discretion of the trial court and will not be reversed on appeal unless the trial court abused its discretion. State v. Howell , 868 S.W.2d 238, 249 (Tenn. 1993). Furthermore, the defendant must show that the jurors we re biased or pre

judiced agains

t him before his co

nviction will be overturned on appeal. State v. Melson , 638 S.W.2d 342, 360-61 (Tenn. 1992). Mere exposure to news accounts of

the incident does not, standing alone, establish bias or prejudice. Prospective jurors can have knowle

dge of the fac

ts surrounding the

crime and still be q

ualified to

sit on the jur y. Statev. Bates , 804 S.W.2d 868, 877 (Tenn. 1991). The test is “whether the jurors who actually sat andrendered verdicts were prejudiced by the pretrial publicity.” State v. Kyger, 787 S.W.2d 13, 18- 19 (Tenn. Crim. App. 1989). Because the defendant has failed to include the transcript of the jury selection, we are

unable to review whether the jurors were exposed to the publicity or were biased against the def

endant.

The defendant relies upon State v. Hoover , 594 S.W.2d 743, 746 (Tenn. Crim. App. 1979), to argue that the timing, content, and pervasivene ss of the publ icity along with the severity of the-10-

offense charged supp ort a change of venue. We note t hat Hoover

also listed eleven factors beyond those considered by the defendant includ in g the “care exercised in selecting a jury ,” the “ease or difficulty in selecting a jury,” the venire’s “familiarity with the publicity and its effect, if any, upon themas shown through their answers on voir dire,” and the defen dant’s us e of peremptory challenges. Id. The absenceof the voir dire in the record prev

ents us from asses sing these fact ors. In the absence of

a complete reco

rd, we must presume

that the trial cour

t correctly denied the motion for a change of venue. State v. Burton , 751 S.W.2d 440, 451 (Tenn. Crim. App. 1988) (presuming that the jury was fair and impartial when the defendant failed to include the transcript of voir dire).

The defendant argues that when questioned by the court or counsel during voir dire, potential jurors should be expected to say that pretrial publicity will not affect their

judgment but that common sense dictates that the publicity will affect them. By this, we believe the defendant is arguing that publicity can be so pervasive that it requires a change of venue without regard to the answers given by the potential jurors during voir dire. “ [E] xtensive knowledge in the community of either the crimes or the putative criminal is not sufficient by

itself to render a trial unconstitutionally unfair,” andthe court may no

t presume unfair

ness based solely

upon the quantity of publicity “in the absence of a ‘trial atmosphere. . . utterly corrupted by press coverage.’” Dobbert v. Florida , 432 U.S. 282, 303, 97 S. Ct. 2 290, 2303 ( 1977) (quo ting Murphy v. Florida , 421 U.S. 794, 798, 95 S. Ct. 2031, 2035 (1975)); State v. Grooms , 653 S.W.2d 271, 274 (Tenn. Crim. App. 1983) (affirmingthe denial of a change of venue when the publicity had g reatly decreased by

the time of trial). Corruption of the tr ial atmo sphere can result from inflammatory publicity immediately before trial or from the influence of the news media pervading the proceedings “either in the community at large or in

the courtroom

itself.” Murphy , 421 U.S. at 798-99, 95 S. Ct. at 2035. On the other hand, the court wi

ll notpresume that the jury’s exposure to

news reports regarding the defendant’s prior convictions or the charged offense without more deprives the defend ant of d ue process. Id. at 799, 95 S. Ct. at 2036.

The defendant has failed to prove t hat the pretrial publicity utterly corrupted the tr ial atmosphere. Although a local newspaper carried a front-page ar ticle on the co-defendant’s trial two weeks before the defendant’s trial began, he does not show what portion of the venire was exposed to the articl e or even what percentage of the population of Lawr ence County subscribes to T h e Advocate , the newspaper that carried the article. At the hearing on the motion for a new trial, the defendant’s investigator, Bobby Bro wn, testif ied that The Advocate

claimed that its inc

rease in advertisements

revealed that

it had the large

st circulation in

Lawrence County. This evidence does not show what portion of Lawrence County was exposed to the article.
Furthermore, the information contained in the A ugust 18, 1999 ar

ticle is not inf lam mat ory, and the bulk of the article corres ponds to the testimon

y given at the defendant’s

trial. The articl

e does relate the testimony of James T. Cooper, a jail inmate, who gave a statem ent claiming th

at Osepczuk asked him to help kil

l the victim

and told him

that “Orlando would pay him $1200.” The article states that Cooper disagreed with his statement at trial and testified that he learned on the streets that a drug dealer had a contract on the victim and that others besides Osepczuk had talked to him abo ut t he contract. Although one could infer from Cooper’s repudiated statement that the-11-

defendant had solicited Osep

czuk to kill the victim, this information appears on the second page of the paper; the article states that Cooper rejected his statement at Osepczuk’s trial; and as discussed above, the state presented evidence at the defendant’s trial from which the jurors could

infer that the defendant solicited Osepczuk to kill the victim. I mportantly, the defendant did not show what pe rcentage of Lawrence County residents rec eived the newspaper containing this article. Thi s information does not rise to the level that we may conclude that the jurors were tainted.

The defendant

also mentions a Janua

ry 21, 1996 a

rticle from The Advocate

which contained pictures of

the defendant a

nd pertained to his

arrest in the dru

g cases. This ar

ticleran two and onehalf years before the attempted murder of the victim and t hree and one-half years before the defendant’s trial. We do not believe that this article

caused or contributed to the utter corruption of the trial atmosphere. Further, we note that at the pretr

ial hearing on his motion for a change of venue, the defendant a

lso introduced a series of articles tracking the case. Articles appearing in The Advocate , on September 13 and 30, 1998, andOctober 11, 1998, do not mention the defendant. An article appearing in

the January 31, 1999, edition discusses th e reduction of the

defendant’s bon

d in this case. An August 22, 1999 article relates that the jury ret urn ed a g uil ty v erdict in Osepczuk’s trial. This article, like

the August 18 art

iclediscussed above, mentions that the defendant also faces charges for the attack a

gainst the victim, that the victim is a potential witness against the defendant in pending d rug cases, and that authorities believe that the defendant placed a contract on t h e vi ctim’s li fe and hired Osepczuk and Polidoro to carry out the “hit.” Finally , the defendant introduced a

August 20, 1999 ar

ticle from The Democrat-Union , which relates that Osepczuk was convicted, that the state alleges that the crime occurred because of the victim’s status as a potential witness ag ai nst the defendan t in pending drug

investigations, a

nd that the defend

ant, who is also charged in the case, is the

next to be tried. To th

e extent that these

articles mention the defendant,
none of them contain inflammatory information or provide evidence bey ond that given at his tria

l.

III. HUNG JURY

The defendant contends that the trial court erred in returning the jury to their deliberations rather than accepting the jury’s statement that they could not reach a unanimous verdict and by eliciting the numerical div ision of their split.

He argues that the

court violated his

due process rig

hts by directing the ju

ry to resume

deliberations after learning that the jury was divided eleven to one. He maintains thatthis created a coercive atmosphere which pressured the minori ty juror to chan ge his or her decision. The state contends that the jury volunteered its numerical division and that the trial court did not direc

t any commen

ts to the minorit

y juror. I t a rgues that after determining that further deliberations might result in a unanimous verdict, the trial court properly

allowed the jury

to continue d eliberatin g.
On the first

day of deliberations, the jury beg an deliberating at 4:11 p.m. Following a one andone-half hour break for supper, t he jury res umed deliberations. At 10:02 p.m., the court informedthe parties that the jury had told the court officer th

at it wanted to

talk to the court, th

at it believedit was hung, and that it volunteered that it was divided eleven to one. The court stated that it was consid

ering rereadi ng the part of the charge that instructed the jurors to consult with each-12-

other without doing

violence to

their individual judgments. See Kersey v. St ate , 525 S.W.2d 139, 145 (Tenn. 1975) ( instructing trial courts on the charge to be given a deadlocked jury ). The defendant objected to the court rereading the charge and asked the cour t to accept the jury’s decision th at it was hung. The court made no specific ruling regarding the de fendant’s objec tion bu t
con duc ted the fol low ing p roce edi ngs i n th e pre sen ce of the jur y:
FOREMAN: We are a hung jury, I think, is the expression. We are at 11 to one, and that one has told us that no matter what we say or do, that person is going to stay with that vote.

COURT: All right. Ha ve you had some good discussions since supper? Has that been – has that wor

ked well? JUROR: We – is it all right for me to tell you the ratio?

COURT: Don’t tell me specifics of what happened when and where, but have y ou hadsome meaningfuldiscussions, since we came back from supper, after the break? JUROR: A mind was changed since supper.

COURT: Al l right. Do you feel that if you took another bre ak, or even if you stay overnight, tonight, that that would help?

FOREMAN: I do. COURT: Do you? Well, what says the State?
[PROSECUTO

R]: If the jury

feels that staying overnight might help, then that’s what the State would ask that we do.

COURT: And the defense?
[DEFENSE

COUNSEL]: Your Honor, we would leave it up to the Cou rt. Obv iou sly, we’r e goi ng to res pect the deci sio n of the jur y.
COURT: All right. Let me ask you, do any of you want to stay an

d deliberate any more tonight? (No re

sponse.) Okay

. I see no han

ds. And I want to ask another question, and that would be a show of hands of all of you who

think that staying another night and starting fresh in the morning might help? Now, I’m not

sure I need to see a show of hands there, but d

o I have at le

ast
a majority of people that feel that way? I don’t really know how to do that w

ay. I’ ll ask for you-all to have some input. That might be a mistake to see a show of hands.-13- But you are telling me, Mr. Foreman – Mr. Li ndsey, that you feel like that might help?

FOREMAN: Well, the person ha s t o ld us no matter what we do or say tonight. I don’t really know

, but it’s kind of my

opinion that it might

. But that’s sim ply m y opinion.

COURT: All right. The Court is inclined to d o that. I know it’s late. Y’all have been deliberating since 4:15 or so. And even with a break, I know y ou’re tired. . . . . So rece ss for toni ght, and sta rt back at 9: 00 in the mo rning?

FOR EMA N: O kay.

The following morning, the jury deliberated for just over an hour before returning a verdict finding the defendant guilty of attempted fi rst degre e murder. The court polled the jury, and each juror agreed with the

verdict. “Until the jury shall have reached a verdict, no one – not even the trial judge –

has any rig

ht,
reasonor power to question the specifics of its del iberativ e efforts.” Kersey , 525 S.W.2d at 141. The tri al c our t ma y n ot inquire about the numerical division of a jury that is unable to agree. Braesfield

v. United States , 272 U.S. 448, 449, 47 S. Ct. 135, 135 (1926). Although the actual effect of such an inquiry

will vary fr

om case to case, i

t is generally

coercive and wi

ll brin g an immeasurable and improper influence to bear upon the jury. Id. at 450, 47 S. Ct. at136. Holding inquiry into th

e jury’s div

ision to be error,

our supreme cour

t has directed tha

t:
when a jury’s deliberations have not produce d a verdict, and it returns to the courtroom

andso reports, the pr

esiding judge s

hould admonish

the jury, at the very outset, not to disclose their division or whether they have entertained a pr ev ailing view. The only permissive inquiry is as to progress a nd the j ury may be as

ked whether it believ

es it might reach

a verdict after

further deliber

ations. Kersey , 525 S.W.2d at 141. Although the trial court in t he present case did not inquire about the jury’s numerical division, it also fai led to admonish the j ury not to re veal its division des

pite receiving information from its court officer that the jury had volunteered its division to the officer. It should have admonished the jury not to reveal its division.

The state relies upon State v. Caruthers , 676 S.W.2d 935, 942 (T enn. 1984), to

argue that no
erro r resulted from the jury volunteering its division. In Caruthers , the jury se nt the court a note stating that it was divided e leven to one on the

issue of punishment

with no foreseea

ble change. Our suprem e court hel d that the trial court did not err by recalling the jury and giving the Kersey instruction. Id. The opinion does not reveal whether the trial court admonished the jury not to reveal its division when it ret

urned to the cour

troom nor does it indicate whe ther the court engaged in a dialogue with the jury before giving the Kersey instr uction. Because Caruthers focuses on the-14-

propriety of the Kersey

instruction during the sentencing phase of a capital case without revealing whether the trial court admonishedthe jury not to reveal its numerical division, it does not support the state’s contention. Although the better prac

tice would

have been

to advise the jury not to reveal its division, the trial court’s failure

to do so does not end o ur inquiry. We

note that the trial

court may, i

n its discretion, order a jury

to deliberate further after it appears that the jury is unable to re ach a verdict, Kersey , 525 S.W.2d at 145, and unless a trial court causes a jury to reach a verdict in such a manner that is “patently

not their free and untrammeled verdict, a new trial will not be granted.” Rushing
v. State , 565 S.W.2d 893, 896 (Tenn. Crim. App. 1977). The failure to admon ish the jury not t o disclose its numerical division is harmless error if it does not affirmatively appear to have affected the result of the trial. Bass v. Barksda le , 671 S.W.2d 476, 484 (Tenn. Ct. App. 1984) (analyzing the foreman’s volunteering that one juror could not a

gree with the others in light of the trial court’s failure to give the admonition suggested in Kersey ) (citing T.R.A.P. 36(b)); see State v. Dick , 872 S.W.2d 938, 945 (Tenn. Crim. App. 1993) (holding any error in the trial court’ s inquiry into the numerical division of the jury to be harmless because it gave no Allen or dynamite charg e and no evidence existed that the inquiry affected the verdict). Thus, we turn to the question of whether the trial court’s failure to admonish the jury constitutes harmless error.

The defendant argues that after the jury had r evealed its numerical division a s w ell as the posi tion of the minority juror and upon the

court announcing

that the jury

would resume deliberations the next morning, the jurors must have understood that they needed to change the minority juror’s vote. He maintains that in order to avoid this result, the court should have accepted that the jury could not come to a unanimous decision. The state contends that nothing in the court’s discussion with the foreman w as directed to the

minority juro

r nor did the court

’s comments sugg

est that any of the jurors should abando n his or her convictions. We agree with the state. The trial court’s dialogue with the jury was directed at determining whe

ther further de

liberations might

help the jury arrive at a verdict. In Lowenfield v. Phelps , 484 U.S. 239, 240, 108 S. Ct. 546, 552 (1988), the Court held that the trial court’s polling of the jury was not coercive in violation of Braesfield because the court asked the ju rors whethe r further del iberation s would be h elpful in r eturning a verdict rather than asking about the merits of the case. Thus, in light of

the fact that the trial court only sought to determine if further deliberations would yie ld a verdict, its failure to admonish the jury not to reveal its numerical division was harmless error.

IV. JURY’S EXPOSU

RE TO EXTRANEOUS INF ORMATION The defendant contends that the jury’s exposure to extraneous information violated his rights to a fair

trial and to confront his accusers. He claims that juror Martha Jones revealed in an affidavit that the jury considered information about the defendant’s involvement in the drug tra de andhis personal back

ground and abou

t co-defendant B

utch Osepczuk’s c

onvic ti on that was not evidence at trial. He arg ues that the trial c

ourt erroneously

refused to admit th

e affidavit into evidence at the hearing on the motion for a new trial and denied his motion for a new trial based upon the jury’s e

xposure to

the extraneous information. The state contends that the affidavit alone-15-

didnot show th

at the jur y was e xp osed to ex traneous information or was biased against the defendant. Thus, it argues that the trial cour t properly d

enied the defen

dant’s motion for a

new trial.

At the hearing on the motion for a new trial, the defendant sought to introduce Ms. Jones’s affidavit,arguing that it revealed that the jury was exposed to e xtran eous prejudicial information. The affidavit sta

tes as follows: Myname is Martha J. Jones. I was one of the jurors in the case of State v

. Orlando Crenshaw, Case #20944. During the jury deliberations a number of th e jurors made comments that “they knew more about what’s going on in this town and in this c ase” than I knew. Statements were made that Orlando Crenshaw was “the big drug king pin of Lawrenceburg” and beca use he was involved in drugs he was guilty in this case.

Statements

were also made about the f act that the co-defendant, William ButchOsepczuk, had been tried a few weeks earlier an d co nvicted and the on

ly
reasonOsepczuk didn’t testify against Orlando Crenshaw was because he

was afraid of him.

The foreman of the jury also talked about the defendant’s personal back grou nd and life history. These statements included comments as personal as who the defendant and his family dated.

The state objected to the affidavit, contending that the juror could not

impeach the verdict with the opinions a nd inferenc es of the other jurors during deliberations. The defendant asserted that the statements

in the affidavit, including the fact that Osepczuk had been tried and convicted and information about whom the defendant had dated and his personal life, were not facts in evidence at trial. The tria

l court declined t

o admit the affida

vit into evidence a

nd found that

anyti me you’ve got a trial, you’ ve got underlying tones, and certainly the dru g activity was a part of

this trial, and it came out during the trial – and I think rightf

ully
so – the contract for hire to kill the snitch because of the drug deals. And then y ou’ve got Mr. Crensha w there at trial, facing the attempted murder with the underlying tones, there, of serious drug dealing. There [are] going to be a l ot of theories probably bo

unced around in th

e jury room,

and I think tha

t’s what this is.

At the end of the he

aring, the cour

t overruled the mo

tion for a new tria

l on all grounds.
Rule 606(b), Tenn. R. Evid., govern s a juror’s compe

tency to tes

tify rega rding the validit

y of the verdict: Upon an inqu iry i nto the validity of a verdict or indictment, a juror may not testify
as to any matter or statement occurring during the course of thejury’s deliberations-16-

or to the effect of

anything upon any juror’s mind or emotion as influenc ing that juror to assent to or dissent

from the verdict or indictment or concerning the juror’s mental p rocesses,except that a juror may testify on the question of whether extraneou s prejudicial information was improperly brought to the jury’ s attention, whether any outside infl uen ce was improperly brought to bear upon any juror, or whether the jurors agre ed in advance to be bound by a quotient or gambling verdict without further discussion; nor may a juror’s affidavit or evidence o f any s tatement by the juror concerning a matter about which the juror would

be precluded from testifying be received fo

r these purposes.

As the Advisory Commission Comment notes , this rule is the codification of the supreme court’s adoption of Rule 606(b), Fed. R. Evid., in State v. Blackwe ll , 664 S.W.2d 686, 688 (Tenn. 1984). Both fact and opinion can comprise extraneous information influencing a jury. Blackwell , 664 S.W.2d at 689. If the d efendant shows that the jury has been subjected to extraneous prejudicial information or

improper influen

ce, then we pres

ume prejudice and the

burden shifts to the

state to rebut this presumption by either explaining the exposure or proving that it was harmless. Id. In the present case, the trial court did not find the information to be extraneous but rather characterized the statements as theories considered by the jury , and thus, the burden never shifted to the state.

The state contends tha

t Ms. Jones’s affidavit is insufficient to show that the jury was exposed to extraneous prejudicial information and that the defendant failed to show bias on the pa rt of the jur y. It argues that the affidavit contains vague allegations of statements made by unidentified jurors during the deliberations and that none of this inf ormat ion wa s subj ect to cross -exam inati on. It maintains that the affidavit fails to allege that the jury had contact with a

third party regarding the merits of the case or that the jury separated.

The defendant conte

nds that Ms. Jones’s a

ffidavit reveals that

outside influence infected the jury’s deliberations and t hat some of the jurors essentially presented testimony, whic h was not subject to cross-examination, during de libera tions. He cites Briggs v. State , 207 Tenn. 253, 338 S. W.2d 625 (1960), a pre- Blackwell case in which the defendant was convicted of voluntar y manslaughter

despite his claim that

he acted in self-

defense in the kil

ling. During de

liberations,

one juror told other

jurors that the defendant had a bad temper, would kill if angered, and had killed the juror’s brother. These s

t ate ments were not in evidence. The defendant in Briggs argued that the juror’s statements violate d his right to confrontation. In reversing and remanding for a ne w trial, the court quot ed with app roval the fo llowing:

“Most of the courts whic

h have receive

d jurors’ affida

vits or testimony

as t o improper statements made by other jurors in the course of the deliberations have taken the view that where the statement in question related to a matter not i n evidence, and having a tendency to reflect upon the accused’s claim of innocence or the degree of

his guilt, it would be presumed that it did in fact have an improper effect upon the jury’s deliberations and was prejudicial to accuse d.”-17-

Id. at 259, 338 S.W.2d at 627-28 (quoting W. E. Shipley, Annotation, Admissibility a nd Effect, in Criminal Case, of Evidence as to Juror’s Statements, during Deliberations, as to Facts Not Introduced into Evidence , 58 A.L.R.2d 556, 568 (1958).

“E xtraneous means ‘coming from without.’” State v. Coker , 746 S.W.2d 167, 171 (Tenn. 1988) (holding that

the jurors’ alleged discussion about the possibility that the defendant would hire
someone to kill them was inadmissible because thedefendant had not shown that the jury learned of the threat from an outside source). Without question, information that can be inferred from the evidence offered at trial is not extraneous information. “Indeed, jur ors are free to

use their common knowledge and judgment derived from experience, observation, and reflection to decide whether a fact is logically

deducible or reasonably inferred from the evidenc e.” State v. Nesbit

, 978 S.W.2d 872, 886 (Tenn. 1998) (analyzing the sufficiency of the evidence regarding an aggravating fa ctor). In State v. Hailey , 658 S.W.2d 547 (Tenn. Crim. App. 1983), the defendant wanted to introduce the testimonyof two jurors, who would relate that duringdeliberations, another juror told the jury that the defendant had

previously

been convicted of murder and should not get another chance. The court held that because the jury heard evidence reg arding the defendant’s first trial during the tes tim ony, the statement was not extraneous information. Id. at 553.

In the present case, the jury could have infer red the statemen

ts in Ms. Jones’s affi

davit relating to the defendant’s involvement in the drug trade,Osepczuk’s fear of testifying against the defendant,

and aspects of the defendant’s background from the evidence presented at trial. On the other hand, we note that the statement that the other jurors knew more about what was going on in this case than Ms. Jones s uggests that the other jurors may have revealed more specific information than that given in

the broadcategories mentioned in the affidavit. Without Ms. Jones’s testimony at the hearing on

the motion for a new trial, the trialcourt had no opportunity to explore the exact nature of the information allegedly revealed by the other jurors. In any event, the

jury could not infer from the evidence at trial that Osepczuk h a d been tried and convicted two weeks before the defendant’s trial and the information about whom the defendant and his family members date d.

Information

imp art ed t o th e ju ry by a third party during the trial or deliberations is extraneous information. Blackwell

, 664 S.W.2d at 688-89 (holding a juror’s conversation with t he vi ctim’s mother to be “improper outside influence that resulted in the transmission of prejudicial information to the jury”) . In the prese nt case, Ms. Jones’s

affidavit does no

t alle ge that the j urors learned the facts not in evidence fr

om a third party

d uring the trial or deliberations. Instead, the defendant
assumes that the jurors had pretrial knowledge of this information but argues that the information is extraneous because it was not a part of the evidence at trial. A distinct difference exists when a juror having particular knowledge of events related to the case is totally honest during voir dire and the defendant has a full opportunity to question the j uror about that knowledge. Under such circumstances,

the fact that

the defendant failed to question the juror fully before accepting him or her as a trial juror

is of no consequen

ce. Acceptanc

e of the jurors ef

fectively constitutes the pa

rties’ consent that t he juror s, with all their knowledge and experiences, will decide the case. See , e.g. , United States v. Rigsby , 45 F.3d 120, 125 (6th Cir. 1995). C.f. United States v. Herndon , 156 F.3d 629, 635 (6th Ci r. 1998) (di stinguish ing Rigsby based in part upon the juror’s failure to reveal that-18-

he may have

had business

dealings with

the defendant despite defense counsel asking on voir dire if the jurors knew th

e defendant). I

f such were not th

e rule, it would be

difficult to selec

t juries, particularly

in rural venues.

The twentieth century

American jury has moved a long way from its medieval origins. Today’s juror must be “indifferent” and “[h]is verdict must be based upon the evidence developed at the trial.” Still

we would not lightly assume that the jury’s original role as the voice of the country may not sufficiently persist that neither the specific guarantees of an impartial jury and of confronta tion nor the more general one of due process would be violated simply because jurors with open minds were influenced

to somedegree by community knowle dge that a defendant was “wicked”
or the reverse, even though this was no t in eviden ce. One, alt hough by no means the onl y, purpose

of the insistence on tria

l in the vicinage

both in Article I

II, § 2, a nd in the Sixth Amendment, must have been to entitle a def endant to trial whe

re he is known–a nd this may sometimes work against him rather than in his favor. I ndeed there are still sections of the country wher e it might be impossible to find twelve jurors who were t

otally igno

rant about a defe

ndant.

United States ex. rel Owen v. McMa nn , 4 35 F.2d 813, 817 (2 d Cir. 1970) (citat

ions and footnote omitted). Absent a

showing that a pot

ential juror fail

ed to disclose fac

ts after questioni

ng that should reasonably

elicit those facts, disse

mination of those fa

cts to other jurors dur

ing deliberatio

ns would not be improper. In the prese

nt case, we have

no way to

review whether the voir dire questions should have
or did elicit the facts no t in evidence be cause, as noted above, the defendant failed to include the transcript of the voir dire in the record on appeal. However,we also note that during the defendant’s argument on the venue issue at the motion for new trial hearing, the state argued that the jurors were questioned during voir dire about their exposur

e to pretrial publi

city and wha

t eff ect the publicity would have on them. The trial court recalled that one juror revealed during voir dire that he knew the defendant when the d efenda nt was a child and that the defendant grew up with the juror’s children. The court then obs erved that it did not recall that the defendant had e

xhausted his perem ptorychallenges, and it found Ms. Jones’s affidavit inadmissible to prove that the jury was influenced

by pretrial pub licit y. The defendant bears the burden of showing that the juror s were exposed to extraneous information and that their testimony is thereby permitted under Rule 606(b), Tenn. R. Evid. See Blackwell , 664 S.W.2d at 689 (holding that in order to shift the burdento the state to prove the absence of prejudice, the def endant must show more than the fact that a juror mingledwith the public but, instead, must show that extraneous prejudicial information or improper influence resulte d from the c ontact with a third party). The trial court, which had the benefit of hearing the voir dire, declined to admit Ms. Jones’s affidavit on the venue issue as evidence that the jury was tainted by pretrial publicity. S ee State v. Young , 866 S.W.2d 194, 196-9 7 (Tenn. Crim. App. 1992) (observing that the trial court was in the best pos ition “to ass ess the nature of the extraneous inf orm ati on, as w ell as i ts e ffec t, i f any, upon the jury”). In light of the absence of the-19-

voir dire transcript

from the record, we

defer to the trial court’s ruling and hold that the defendant has failed to meet his burden of showing that the jury was exposed to extraneous information.

Based upon the foregoing and

the record as a whole, we affirm the judgment of conviction.

___________________________________ JOSEPH M. TIPTON, JUDGE