### IN THE SUPREME COURT OF TENNESS EE AT JACKSON April 2005 Session

ROBERT D. WAL SH v. STATE OF TENNESSEE Appeal by pe rmissio n from the Court of Cr

iminal App eals 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 a ppeal fr om 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 re garding the con tent of the communication and also the subjective effect of the officer’s statement upon the juror. At the close of the hearing, the tria l court found that the improper communication had not influenced the verdict and there fore denied the p etition for post-convictionrelief. Upon review, the Court of Criminal Appeals affirmed. I n this Court, the petitioner challenges admission of thejuror’s testimony relating to the e ffect of the court officer’s statement on t he juro r. After

thoroug h conside ration, w e reverse the Cou rt of Crimi

nal Appe als. We hold that Tennessee Rule of Evidence 606( b) proh ibits introduction of juror testimony concerning

the effect on the juror of an improper commun icati on by a court of

ficer during jury deliberations.
Tenn. R. App. P. 11 Application for Permission to Appeal;

Judgment of the Court of Criminal Appeals Reversed

W IL LI AM M. B ARKER , J., delivered the opinion of the court in which F RANK F. D ROWOT A , III, C.J., and E. R IL EY ANDERSON , A DOLPHO A. B IRCH , J R ., and J ANICE M. H OLDER , JJ., joined. C. Michael Robbins, Memphis, Tennessee, for the appellant, Robert D. Walsh.

Paul G. Summers, Attorney Gene ral and Reporter; Mich ael E. Moore, Solicitor General; and Elizabeth T. Ryan, Assistant Attorney General, for the appellee, State of Te nnessee.-2- OPINION

Facts

In1998, the

petitione r was indi cted in She lby

County on charges of agg

ravated sexual battery and rape of a child. A criminal court jury found the petitioner

guilty of ag gr av at ed se xu al ba tt er y, butnot guilt

y of rape. The trial cou

rt senten ced the p etitioner

to a term o f ten y

ears impr isonment. Uponappeal, the Court of Criminal Appeals affirmed the convi ction, but

modified t

he sente nce to allow the petitioner to be eligible for releas e after

serving thirty percent of his sentence, rather than one-hundred

percent as ordered by

the trial court. See State v. Ro bert D. Wa

lsh , W1999–01473- CCA-R3-CD, 2001 WL 91949 (Tenn. Crim. App. Jan. 30, 2001). The petitioner was d enied permission to appeal the conviction in this Court.

InJune 2002 the petitioner filed a petition for post-conviction relief, alleging, among

other things, that he had been denied his right to a fair an d imparti al jury trial due to an imprope r communicationto the jury by a deputy sheriff who was acting as a c ourt 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 a t one point during deliberations, she and the other jurors had voted unanimous ly

to find the petitioner not guilty of rape of a child. However, the vote on the charge of aggravated

sexual bat tery had be en 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 tha

t the jury could not reach a decision on one of the charges. Then, accor

ding to Ms. Busby, the c ourt officer made a statement to the effe ct that the jury was r equired to make a decision. Althoug

h Ms. Busby c ould not re call the o fficer ’s exact words , she testified that he “almost jokingly or kind of laug

he d [and] said , ‘you have to’ or ‘you must’ or something to that effec t. ‘You hav e to reach a decision.’” Ms. Busby

was convinced that the other members of the jury also heard the officer’s remar k. After this exchange with the court officer, a nother ballot

was taken,
an d t he ju ry r et ur ne d a un an im ou s v er di ct of gu il ty o n t he ch ar ge of

ag gr av at ed se xu al ba tt er y. On cross-examination, the State asked Ms. Busby a se

ries of questions touching upon the effect of the officer’s statement

upon her deliber ations. Pertinent portions of this cross-examination
were a s follows:
Q (by the State ): This motion that’s pending before Judge Bennett right now indica tes that because of what th

is deputy said that y

ou, Ms. Busby, cha

nged y our vote from
no t g ui lt y to gu il ty.-3-

A (by Ms. B usby

): I t wasnot be caus e of w

hat h e sai d. I

mean , it ma

de me real ize that I did have to make a dec ision. But, I made the decision to change my vote, I believe, because I’m obviously not a very se l f-confident person. A

nd, I felt that if eleven other pe ople fel

the was g uilty , I tho

ught it wa s something

wrong w ith me that I co uldn’t se e that. Q: This motion says that y ou felt that you wer

e required – – – A: No. Q: To re ac h a ve rd ic t a nd fi nd hi m g ui lt y? A: No, I have been on othe r juries and I’m sorry

, that’s not true. Q: This motion also says that y ou fe lt that you

had, and I’m going to qu

ote this di re ct ly. “Ms. Busby

felt that she had to make a decision in line with the other eleven jurors.” End of quo te. I s that a c orrect statemen t? A: No, sir. Q: Are you telling

Judge Ben

ne tt that you reache d a verdict on this case and the verdict that y ou did rea ch was y our own in

depende nt verdict? A: Yes, it was. Q: Ar e yo u t el li ng th e C ou rt th at you fo un d M r. Wa ls h g ui lt y o f aggravated child ab us e o nl y be ca us e o f t he st at em en ts ma de to you by t he de pu ty? A: No. Q: Wh y di d yo u r ea ch th e v er di ct th at you re ac he d, Ms . B us by? A: Well, I think I just stated that. That af t er sitting there and I had e

veryone a t the tablego aro

und and te ll me ag ain

why they felt that he wa s guilty . And, I just felt it must be something wro ng with me that I could not s ee it. And , I ne ver did se e it. But, I fe lt that I needed to go with

them bec ause of t

hat. Be cause

of my lack of se lfconfidence.

. . . . Q: Did anybody

put any pressure

on you in order for

you to reac

h that decision? A: No. Q: Did anybody

force y ou in order to get y

ou to reach that decision? A: No. Q: Do you fee l as if anybody engaged or exerted a

ny improper influenc e upon you in order for y

ou to reach that decision? A: No. Q: Did any of the other

eleve n m embers o f the jury ever sta te to y ou that the

y f elt they were re ac hi ng a, on vo ti ng a c er ta in wa y be ca us e o f w ha t a de pu ty m ay hav e said to the

m? A: No.

Neither the court officer nor any

of the other jurors were called to testify about these ev ents. Therefore, based upon Ms. Busby’ s testimony, the court found that an improper communication had-4-

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 j ury had bee n i mproper. The court also recognized that the improper communication raised a pres umpti on of pre judice wh

ich the Sta

te was re quired to sufficie ntly rebut in order to sustain the verdict. The court was of the opinion, however, that there would be no way f

or the State to rebut this presumption withoutallowing the juror to testify about how the court officer’s statem ent may have influenced her. Therefore, the Court of Criminal Appeals held that admission of the juror’s testimony was proper

and aff irmed the denial ofpostconvictionrelief. We granted permission to appeal to addre ss 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 impr oper i nfluence on the jury has been waived by the petitioner due to his failur e to raise it during his direct appeals. However, the State did notassert the defen se of wa iver at the post-c onviction hearing ; instead, the State raises it for the first time in this Court. B y do ing so, the State ha s denied t he petitioner an op

portunity 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 compet ent jurisd

ic tion in whic

h the gr ound coul d have be en prese nted is wa

ived”) ( emphasis added). Under these circumstances, we conc lude that the State’s waiver argument has itself be e n waived. Issue s not addr

essed in t he post-c onviction

court wil l gener

ally not be addressed on

appeal. See Rickman v. State , 972 S.W.2d 687, 691 (Tenn. Crim. App. 1997); see also State v. Whi te , 635 S.W.2d 396, 397-98 (Tenn. 1982) (rejecting an arg ument presented by

the State for the first time on appeal). We conclude therefore that the State may not properly asse

rt the issue of

waiver f or the fir st time in this C ourt.

We now proceed to the central issuein this case –whether the jury ’s verdict was tainted due to improper influence during deliberations. The pa rties do not dispute that the court officer made
animproper 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 arg ues that allowing the State to cross-examine the juror re gardin g the ef fect of the cour t office r’s state ment imper

missibly delve d into the juror’s internal thought processes and motivations during deliber at ions, thus violatin

g Tenness ee Rule o f Evidenc e 606(b) . Rule 606( b) provid es: Uponan inquiry into the validity of a verdict or indictment, a juror may not testify
as to any matter or state

ment occurr ing duri ng the c ourseof the jury’s de liberations
or to the effect of any

thing upon any juro r’s mind or emotions as influencing that juror to assent to or dissent from the verdict or indictment or concerning the juror’s1 Federal Rul e of Evidence 606(b) and the c urren t Tennessee Rul e of Evidence 606(b ) differ only in one respe ct. The Tennessee rule contains the additional exception all owing for juror test imony in a case where “t he jurors agree d in ad vanc e to b e bo und 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)] repres ents a compromise betwe en important publi c polici es. I t enabl es the c ourts to protect the li ti gant s f

rom ver dict s t aint ed by ex tra neous preju dici al i nfor mati on or outsi de inf

luence. At the sam e time, it rec ogniz es the im por tance of the inv iolate nature of a jury’s d eliber ations. . . . The rule precludes inqui ries int o the jury ’s deli berat ive proces s whi le a ll owing juror testi mony concerning objective incide nts or e vents tha t constitute extern al or ex traneo us influenc es on the jury. . . . Thus, it ins ures tha t jurors wil l not be guar ded in the ir de li berat ions for fear of lat er scruti ny by others. It also prevents jurors whose views ar e in the minorit y from manipulating the syst em by repudiating the verd ict and thereb y requ iring a ne w trial.

Id. at 741-42 (citations omit ted).
-5- me ntal process es, except that a jur or may testify on the que stion of wheth e r extraneous prejudic ial infor mation wa s imprope

rly brough t to the jur

y’ s atten tion, whether an y o utside i nfluence was improperly brought to bear upon any juror, or whether the jurors agreed in advance to be bound by a quotient or gambling verdict withoutfurther discussion; nor may a juror ’s affidavit or evidence of any statement by t he juror concerning a matter a bout which the juror would be precluded from testify ing be r eceive d for the se purpos es.

In State v. B lackwe ll , 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 impeac h 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 Blackw ell that Rule 606(b) was essentially a codification of established Tennessee law in this

respect. Blackw ell , 664 S.W. 2d at 6 88. R ule 60 6(b) i s “gr o unded in the common-law rule against admission of jury testimony to impeach a verdict and the exception for juror testimony re lating 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 prote cts jurors from harassment by the losing pa

rty who might seek to impeach the verdict. Id. at 108. Thus, the overarching purpose of both the fe deral
a nd Tennessee Rule 606(b) is to protect the integrity of the jury’s de liberative proc ess. See id. a t 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

permitte d to testif

y a bout any thing oc curring

during d elibera tions, including the juror ’s own inte rnal t hough ts, motivations, or emotions. Tenn. R. Evid. 606(b); Blackw ell , 664 S.W.2d at 688. The rule does, however, make an exception in three circumst ances, allowing juror testimony if there ha s bee n: (1) extraneous prejudicial information, (2) outside influence, or (3) a

n antece dent ag

reemen t to be boun

d by a quotien

t or ma jority result. Tenn. R. Evid. 606(b); Cavalier Metal Corp. v. Johnson Me tal Contro ls , 124 S.W.3d 122, 127 (Tenn. Ct. App. 2003). Further, when it has been shown that a juror wa s exposed to ex t raneous prejudicial-6-

informationor subjected

to imprope

r influen ce, a re buttable presumption of prejudice arises, and the burden shifts to the State to explain the conduct or demonstrate that it was harmless. Blackw ell , 664 S.W.2d at 68 9; Parchman , 973 S.W.2d at 612.

Alth ough adopted in 1984, the scope of inquiry permitted under Rul e 606(b) remains an
uns ettled issue in

this state. In some instances the rule has be en interpreted as permitting juror testimony only as to the existence of extraneous informa tion 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 (Ten n. Crim. Ap p. 2003); Montgome

ry v. State , 556 S.W.2d 559, 561 (Tenn. Cr

im. App. 19 77). I

n other c ases, co

urts have permitte d juror te st imony not only to establish the fact of extraneous information or outside in fluence , but als o as to the effect of that informationor 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 lat er disco vered th at during the jury ’s deliberations a bailiff had made an improper communication to the ju ry. The jury had bee n at an imp asse re gardin

g one of the char ges, and one of the jurors decide d to inform the court. However, rather than spea king with the judge, the juror spoke with a bailiff who informed the juror they would be required to deliberate until a verdict
was reache d. The jur

y then voted u

nanimousl

y to fi nd the def

endant g uilty . When cal led later

to testify about the conversation, the bailiff stated that the juror had asked whether they could “find her guilty on one c

harge and not guilty

on the other?” The bailiff t estified that his on

ly r esponse was, “Yes.” The court found that regardless of w hat the bailiff actually sa

id, the jurors believed that the bailiff’s statemen

t had bee n that a ve

rdict wa s re quired. Id. at 613. This extraneous information raised a presum ption of pr

ejudice and shift ed the bur

den to the State to show the information was harmless in order to sustain the verdict. Id. By pre senting only the testimony of the bailiff, the court concluded

that the State had

failed to sufficiently r

ebut this presumption, thus warranting a new tri al. Id. at 614.
Then, in dicta, the Parchman court offered

that to rebut the presumption of prej udic e, “[i ]t would have been

possible to

callthe 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 conflic ts with that of the majority of other c ourts having addressed the issue. The predominant view among other jur

isdictions is that jur

or testimony r

egard in g the sub

jective effect of extraneous informationor outside influence on the juror’s internal thoughts or delibera tive processes is not permitted. See, e. g., Larson v. State , 79 P.3d 650, 65 4 (Alaska Ct. App. 20 03); Lewis v. Pearson , 556 S.W.2d 661, 663-64 (Ark. 1977); Wiser v. People , 732 P.2d 11 39, 1142 ( Colo. 1987) ; Flonnory
v. State , 778 A.2d 1 044, 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, 73 3-34 (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. Ly les , 380 S.E.2d 390, 3 9 4 (N.C

. Ct. App. 19 89); State v. Cr owell , 594 P.2d 905, 907 (Wash. 1979). This is als o the law i n virtually every f ederal circuit to have addressed the issue. See United States v. Gonzales , 227 F.3d3 Although the court i n Haugh was inter preting Fed eral R ule of Evidence 606(b), rat her th an the Tennes see rule, the f

ederal cour

t’s int erpreta tion pr ovides helpful g uidan ce to our o wn an alysis bec ause the two rule s are virtu ally identic al. See Caldararo , 794 S.W .2d 7 41 a t n.3; Co nt’l Cas. C o. v. Sm ith , 720 S.W .2d 48, 49 (T enn. 1986).
-7- 520, 525 (6 th Cir. 2000) ; Mahoney v. Vonder

gritt , 938 F.2d 1490, 1492 (1 st Cir. 1991); United States v. Ortiz , 942 F.2d 903, 909 (5 th Cir. 1991); Haugh v. Jones & Laug hlin Steel Corp. , 949 F.2d 914, 917-18 (7 th Cir. 1991) ; United States v. Maree , 934 F.2d 196, 201 (9 th Cir. 1991) ; Capps v. Sullivan , 921 F.2d 260, 263 (10 th Cir. 1990) ; United Sta tes v. Smal l , 891 F.2d 53, 56 (3 rd Cir. 1989) ; Stockton
v. Virgini a , 852 F.2d 740, 744 (4 th Cir. 1988) ; United States v. Sjeklocha , 843 F.2d 485, 488 (11 th Cir. 1988) ; United States v. Moon , 718 F.2d 1210, 1235 (2 nd Cir. 1983).

A good a naly sis of the issue is found in Haugh v. Jones & Laug hlin Steel Corp. , 949 F.2d 914 (7 th Cir. 1991), whichinvolved a trial in f ederal district c ourt. 3 After the jury rendered its verdict and was discharged, the jury

forem an inf

ormed the ju dge that a marshal who had overseen the jury during deliber ations had told its members that there was no such thing as a hung jury

. Id. at 915

. The judge h eld

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 in quired not only

whether each of the jurors had heard the marshal’s remark, but a lso how the remark had influenced each jur or. The judge posed questions such as, “[F]or what reason did yo u [r ender thi s verd ict] , becau se you bel ieved in th e verdi ct or b ecause you wante d to go home?” Id. at 918. Con cluding th at th ere was a reasonable possibility that the statement had influenced the verdict, the court ordered a new trial.
Uponreview, the Seventh Circuit Court of Appe als hel d 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 rega rding the impact of extraneous informationor outside influence on their deliberations. Id. According to the court, the proper p rocedur e under R ule 606(b ) is

for the judge to limit the questions asked the juror s to wheth er the communication
wa s made a nd what it contained, and then, having determined that the communicationtook place and what exactly was said, to determine--without asking the jurors anything

further and emphatically without asking them

whatrole the communicationplay

ed in their thoughts or

discussion--whether the

re is a re asonable possibility

that the c ommunica

tion alter ed their verdict

. Id. at 917.
We agre e with the

foreg oing inte

rpreta tion of Rule

606(b). We

also note that

this view i s nota 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 ext raneou s infl uence, altho ugh-8-

notas to how far that influence operated upon his mind.” Mattox v. United States , 146 U.S. 140, 149 (1892). As noted, federal courts genera lly continue to follow the Mattox rule. See 2 Federal Rules of Evidence Manual905 (7 th ed. 1998).

We conclude

that this a

ppr oach is in keeping with the goals of Rule 606(b) to protec t the i ntegri ty of the deliberative process, encourage frank and open discussion among the jurors, and promote finality of jury

verdicts. Prohibiting inquiry into the juror s’ thought processes and motivations during d

elibera tions also s ecures

the prope r relati onship of t

he jury to the judge and the law. The right to a trial in which a jury serves a s 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. Jus t as su ffrage ensures the people’s ultimate control in the legislative and
ex ecutive 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 r

easons, we hold that

Tenness ee Rule o f Evidenc e 606(b)permitsjuror testimony to establish the fact of extraneous information or improper influence on the juror ; however, juror testimon y concerni ng the effect of such information or influe nce on the juror’s deliberative pro ces ses is in adm is si bl e. In the case now before us, we conclude that it was error for the post-conviction court to consider the juror’s testimony reg arding the effect of the court officer’s statement on her decision

making process. Thejuror’s testimony that the statement had be en made
was properl

y 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 office r to testify as to whether he actually

made the st atement, or the other members of the jury could have been asked whether they heard th e statemen t. However, as no other proof was presented on this issue at the hearing , we conclude that the State fa

iled to suf

ficientl y r ebut the presumption of prej udice to t he petiti oner. Acco rd in gl y, we reve rse the ju dgment o f the Cour

t of Crimina

l Appeals and rema nd this ca se for a

new tria l.

Before concludingthis issue, some additional discussion is in order. In reviewing the facts of this case , we see

no ill inten

t by the cour t offic er in m aking the statement to the jury . It was appare ntly no more than an “off the cuff” re mark given during a short exchang e with a j uror , without any thought of

it s p os si bl e e ff

ec t o n t he ju ry. 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 oppor

tunity to strongly

cautionofficers against making any potentially prejudicial re

marks to jurors. In doing so, we do not intend to discourage cordial relations betwe en court officers and jurors. Jury

se rvice 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.3 d at 93 (quot ing State v. Pe nnell , 583 A.2d 1348, 1353 (Del. 1990)). To that end, the court officer’ s role is vital. But at the same time, thes e officers must carefully guard against making a

ny statements of law

or preju dicial comments to ju

rors. Court officers act as representatives of the court, and the y must recog

nize the official character o f their position will caus e their c omments to c arry great weight i n the eyes of

the jury . Thus, we

again stress the importanc e of clos ely

guard ing all c omments ma

de in the presenc e of jurors.-9- Conclusion

To summariz e, we hold that Tennessee Rule of Evidence 606(b) does not permit juro r testimony as to the effect of any

extraneous information or i mproper influence on the juror’s deliber ations. Therefore, thepost-con viction c ourt err

ed in admi

tting jur or testimony i

nthis regard during the petitioner’s post-conviction hearing. The court off icer’s improper statement to the jury created a presumption of

prejudic e which the State failed to overcome. Accordingly , the judgment of the Cou

rt of Crimi

nal Appe als is rev ersed, a nd the ca se rema

nded for a new tri al. Costs of this appeal are taxed to the State of Tennessee.

_____________________________ WIL LI AM M. BARK

ER, JUSTI CE