# FILED

October 6, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT JACKSON JULY 1999 SESSION

STATE OF TENNESSEE, ) ) Appellee, ) No. 02C01-9812-CC-00365

) ) Henderson County v. ) ) Hon. Wh it Lafon, Jud ge ) RUTH STANFORD, ) (Sale of Sched ule III Drug, ) Delivery of Schedu le III Drug) Appellant. )

CONCURRING OPINION

I concur in the majority

opinion, except I vi ew the juror issue s omewhat differently. First, I believe that the juror’s proffered testimony relates to a f act not in evidence, i.e., the defendant’s middle name , that does not fall within the juror’s generalized knowl edge. This information could eas ily relate to the case because the central issue was the identity of the drug seller.

Under the majority opinion’s analysis, as a fact not in evidence, it constituted an external i nfluence. This means that, procedural ly, it was to be presumed prejudicial, and the burden fell upon the state to rebut the presumption. See State v. Young , 866 S.W.2d 194, 196 (Tenn. Crim. App. 1992); State v. Blackwell , 664 S.W.2d 686, 689 (T enn. 1984); see also Remmer v. United States , 347 U.S. 227, 229- 30, 74 S. Ct. 450, 451 (1954). Thus , the trial court would have erred by not all owing the def endant t he oppor tunity to h ave the ju ror testif y.

However, I woul d uphold the trial court bec ause I do not believe that the record supports a conclus ion that the fact not in evidenc e was an improper

influence2 upon the jury. The record i n this case reflects that the d efendant does not contend that the juror learned the defendant’s middle name during the trial stage. Instead, she assumes that the juror had pret rial knowledge of her middle name. In this respect, I believe that a distinct difference exists when the juror having parti cular knowledge of events related to the case is totally honest during voir dire and the defendant has a f ull opportunity to question the juror about that knowl edge. Under such circumstances, the fact that the defendant fa iled to question the juror fully before accepting him or her as a trial juror is of no cons

equence. Acceptance of the juror s effectively constitutes the parties’ consent that the jur ors, with all their

knowledge and experi ences, will decide the case. See , e.g. , United States v. Rigsby , 45 F.3d 120, 125 (6thCir. 1995). If such were not the rule, it w

ould be difficult to select jur ies, particularly in rural venues. The twentieth century Am erican ju ry h as 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 w

e would not lightly

assume that thejury ’s original role as the voice of the cou ntry may not suf f iciently persist that neither the specific g uarantees ofan impartial jury and of confrontation nor the more general one of due process would be violated simply because jurors with open minds were influenced to some degree by community know ledge that a defendant was “wicked” or the reverse, even though this was not in evidenc e. One, al though by n o means t he only, purpose of the insistence on trial in the vicinage both in Article III, § 2 , and in the Sixth Amendment, must hav e been to e ntitle a defendant to trial where he is known–and this may sometimes work against him rather than in his favor. Indeed t he re are still sections of the country where it mi ght be impossible to find twelve jurors who were totally ign ora nt about a defendant. United States ex rel. O wen v. McMann , 435 F.2d 813, 817 (2d Cir. 1970) (citations and footnote omitted).

Absent a showing that a pot ential juror failed to dis close facts after questioning that should r easonably elicit those fact s, I would hold that dis

semination of those facts to other jurors dur ing deliberations w

ould not be improper. In the pr esent3 case, nothing indicates th at the juror was not can did during voir di re. Therefore, I see no juror im propriet y.

_________________________ Joseph M. Tipto n, Judge