# FILED
December 12, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk LARRY S. BRU MIT, ) ) Plaintiff/Appellant, ) ) Appeal No. ) 01-A-01-9703- CV-00109 VS. ) ) Rutherford Circuit ) No. 37508 JAMES ALBERT SUMMAR, ) ) Defendant/Appellee. )

COURT OF APPE ALS OF TENNESSEE MIDDLE SEC TION AT NASHVILLE

APPEALE D FRO M THE C IRCU IT COU RT OF R UTHER FORD COUN TY AT MURFREES BORO, TENNESSEE THE HONORABLE DON R. ASH , JUDGE

LARRY S. B RUMIT Northeast Cor rection Cente r, Unit 9 P. O. Box 5000 Mountain Cit

y, Tennessee 37683- 5000 Pro Se/Plainti ff/Appellant JAMES ALBERT SU MMAR 502 W inf rey Drive Murfreesboro, Tennessee 37130 Pro Se/Defendant/Appel lee

AFFIRMED AND REMAN DED

BEN H. CAN TRELL, JUDGE
CONCUR: TODD, P.J., M .S. KOCH, J.


## O P I N I O N- 2 - A man convict ed of two counts of first degre e mu rder filed a civil complaintagainst the fat her of one of the victi ms, allegi ng that the defendant ha d tampered with thejury that convict ed him. The circuit court dismis sed the complaint

. W e affirm the dism issal.

I.

LarryE. Brumit was convic ted on September 26, 1996 of the murder of two adult males, i ncluding J ames Albert Summar, Jr. On November 15, 1996, Mr. Brumit filed a lawsuit whi ch alleged t hat dur ing trial James Albert Summar, Sr . had told members of the jury , who w ere standing in the hallw ay of the court house, t hat Brumit was gui lty, and that “they bet te r find him gui lty.” Mr. Brumit asked for $10 million in damages. M r. Summar filed a M otion to Dis miss for failure to state a cause of action. The tr ial court g ranted the motion, and dismissed t he com plaint w ith prejudice. Thi s appeal followed.

Mr. Brumit argues that Mr. Summar’s statements to the jury constituted emb race ry, an ancient term in criminal law. It is the offense of “attempting to inf luence
a jury corruptly

to on e side or the other, by promises, persuasion s, entreaties, entertainments, douceurs , and t he like . . . .” Black’s Law Dictionary 522 (6th ed. 1990).
Though the term embracery is not found in Tennessee’s c urrent cri minal code, Mr. Brumit is correct in statin g that the behavior designated by that term still constitutes a criminal offense:

Tenn. Code Ann. § 39-16-508. Coercion of juror. -- (a) a person commits an offense who by means of coercion: (1) Influences or attem pts to influence a juror in the exercise of the juror’s official power or in the per

formance of the juror’ s official duty; or (2) Influences or attempts toinfluence a jur or not to vote or to vote in a par

ticular manner- 3 - (b) A vi olat ion o f th is sec tion is a Cla ss E f elon y. Tenn. Code Ann. § 39-16-509. Improper influence of juror. -- (a) Aperson commits an offense who privatel y communicates with a juror w ith intent to i nfluence the outcome of the pr oceeding on the basi s of cons ider atio ns ot her t han thos e aut hori zed by l aw. (b) A violation of this section is a Class A misdemean or.

We notethat

asi de from criminal sanctions against an embrace or, improper communication between a third par ty and ajuror in a criminal case can also result in rever

sal of a criminal conviction that was pr ocured by s uch a communication. See State v. Fur

lough , 797 S.W .2d 631 (Tenn. Crim. App . 1990).

II.

Several jurisdic

tions recog nize a pri vate right of action for embracery as well. In Employers Insurance of Wausauv. Hall , 49 N.C. App. 179, 270 S.E.2d 617 (1980), for example, th e North Carolina appeals court aff irmed an award of $1,280 for the pl aintiff’s legal ex penses after a mist rial induce d by the defendant’s attempt to coerce a juror.

In LaBarre v. Payn e , 174 Ga. App. 32, 32 9 S.E.2d 533 (1985) , the plai ntiff brought sui t under both 42 U .S.C. § 1983 and state tort law , contending that the defendants had conspir ed to interfere w ith jury de liberations. The trial court granted summa ry judgment to the d efendants. The appeals court affirmed the dismissal o f the feder

al cl aim, bu t reversed the dis missal of the s tate l aw cl aim, holding that Georgia, l ike North C arolina, recognized embr acery as a civil wrong.
However, severa l other jur isdictions have found either

that suc h a privat e right does not exi st, or that for reasons ofpublic policy an action for embracery would not be permitted unl ess the inj ured part y has no other means of redress. See OMI- 4 -

Holdings v. Howell, 864 F. Supp. 1046 (D.C. Kans as, 1994); Trudell v. Heilman , 158 Cal.App.3d 251, 204 Cal.Rptr. 551 (2 Dist. 1984).

We have found no case in which a Tennessee court has recogni zed a civil action for embracery. Nor, aft er mu ch se arch ing, h ave we found any cases under English Common Law, or in the Common L aw of North Carolina prio r to 1796, that acknowledg es the existence of such an acti on.

The North Car

olina Court of Appea ls’ decis ion in Employer s Ins. of Wausau v. Hall rests on the open courts clause ofthe Constitut ion of North Car olina. Wh ile the Constitut ion of Tennessee contai ns a similar provisi on, see

Tenn. C onst
. art. I, § 17, wedecline toadopt the North Carolina court’s reasoning because it dif fers from our understandi ng of the purpose of the open co urts clause. These provi sions do not create new rig hts but r ather recog nize that per sons have a r ight to a j udicial remedy for reco gnized legal inj uries. Recognized l egal injur ies include wrongs as recogniz ed by the law

of the land. See Barnes v. Kyle , 202 Tenn. 529, 534-35, 306 S.W .2d 1, 3 (1957). The law of the l and consists of the Constituti on of Tennessee, the common-law incorporated i nto our law in accordanc e with Tenn. C onst. art. XI, § 1, and the duly enacted statu tes, regulations, and local ordinance s.

Because there is nostate st atute a uthorizin g a civil action for damage s foremb race ry, Mr. Brumit ’s claim ca nnot succeed unles s he can demonstrate the existence at common law of a right of action for da mages for embracery. Mr. Brumit has not pointed to this

common-law cause of action, and our examinati on of the texts and trea tise s has not yi elde d one . Acco rdin gly, we decline to recognize the existence of a civil actio n fo r dam ages for e mbra cery. W e bel ieve that the sancti ons available under our crimin al law ar

e a sufficient deterr

ence to anyone w ho wou ld seek to improperly influence juries in the exercise of th eir official acts.III.

We affirm the dismissal of Mr. Brumit’s complaint. Reman d this cause to the Circuit Court of Rutherford County for further proceedin gs consistent with this appeal. Tax the costs on appeal to the appellant.

________________________________ BEN H. CAN TRELL, JUDGE

CONCUR:

_______________________________ HENRY F . TODD, PRESID ING JUDGE MIDDLE SEC TION

_______________________________ WILLIAM C. KOCH, JR., J UDGE