IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

March 20, 2019 Session

STATE OF TENNESSEE v. GREGORY RANDALL SOUTH

Appeal from the Criminal Court for Fentress County

No. 2017-CR-50 E. Shayne Sexton, Judge

No. M2018-01360-CCA-R3-CD

NORMA MCGEE OGLE, J., with whom ROBERT W. WEDEMEYER, J., joins, concurring.

I agree with the majority’s conclusion that the defendant’s convictions must be 

reversed and the case remanded for a new trial due to the prosecutor’s improper remarks 

during closing argument. I write separately to express my concern about the trial judge’s 

ex parte discussion with the jury during deliberations. 

The record reveals that approximately three hours after the jury began its 

deliberations, the trial judge informed the parties that it had to end court early due to a 

previous commitment. The judge suggested that he “go back and talk to [the jury] and 

inform them of the time constraints without asking them anything about where they are or 

what they are doing.” The parties did not object to the judge’s suggested course of 

action. 

Upon returning to the courtroom, the trial judge said:

Let me tell you what I’ve done. I told them my 

timetable. And we can do this out here if you wish. I have 

read – I have re-read an instruction to them. It is –it’s frankly 

all I did. . . . That -- my reading of that was in response to 

some conversation that I heard. And we could bring them 

back in and I can read that again if you want to them [sic] in 

open Court, but it was apparent to me that they felt like it was 

an all or nothing proposition, that they were not considering 

these charges separately, so that was the response. That was 

09/30/2019
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the – what I thought I needed to do. It’s a little unorthodox, 

but I don’t think it’s off of – off the mark. 

The State asked the trial judge, “Could you just maybe explain again what you 

mean when you say you don’t think they were considering the charges separately?” The 

trial judge responded, “They thought that it’s all or nothing, that it was guilty on 

everything or not guilty on everything. . . . They were not considering the events 

separately.” The trial judge reiterated, “I will concede it is – that is unorthodox, however, 

it’s exactly what I would have done in the Courtroom if they had, you know, asked the 

question in writing.” The State asked, “But even though it says you have to consider 

them separately, they are telling – they made a statement they’re not following the 

instructions?” The trial judge replied, “Well, I’m not gonna speculate on what’s going 

on.” At that point, the trial judge asked the parties to go with him into his chambers, 

where, the record reflects, a conference was held off the record. After the conference 

ended, the jury was brought back into the courtroom, and the trial judge told the jury that 

he had spoken with counsel about his “visit” with them in their deliberation room. He 

then excused the jury until the next morning. The jury returned the next day and returned 

its verdict shortly after the lunch break. 

In State v. Art Mayse, No. M2004-03077-CCA-R3-CD, 2006 WL 1132082, at *7-

9 (Tenn. Crim. App. at Nashville, Apr. 27, 2006), this court emphasized that trial courts 

should discontinue the practice of communicating ex parte with deliberating juries. In 

Mayse, the trial judge, while speaking ex parte with the jury during its deliberation, 

helped the jury formulate the question they wanted to ask the trial judge on the record 

regarding the election of offenses and jury instructions. The trial judge made the parties 

aware of the communication, and the parties raised no objections. Id. at *8. Although 

this court found that the ex parte communication was not reversible error, the court

nevertheless explained: 

To prevent even the appearance of judicial partiality or 

unfairness, any proceeding involving the jury after it has 

retired for deliberations should be conducted in open court 

and in the defendant’s presence. State v. Tune, 872 S.W.2d 

922, 929 (Tenn. Crim. App. 1993); Smith v. State, 566 

S.W.2d 553, 559-60 (Tenn. Crim. App. 1978). The proper 

method of fielding jury questions during deliberations is to 

recall the jury, counsel for both parties, the defendant, and the 

court reporter and to resolve the matter on the record. [State 

v. Mays, 677 S.W.2d 476, 479 (Tenn. Crim. App. 1984)]. 

Id. at *8. 
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Our supreme court has specifically stated that ex parte communications between 

the trial judge and the jury should not contain supplemental instructions relating to the 

case and “‘must not directly or indirectly refer to the specifics of the case, must be 

collateral to the issues under consideration, and must not be capable of affecting the 

deliberative process in any manner.’” Guy v. Vieth, 754 S.W.2d 601, 605 (Tenn. 1988)

(quoting Truscott v. Chaplin, 403 F.2d 644, 645 (3d Cir. 1968). 

_________________________________ 

NORMA MCGEE OGLE, JUDGE