# FILED
December 21, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE SEPTEMBER 1998 SESSION

STATE OF TENNESSEE, * C.C.A. NO. 01C01-9708-CC-00327

APPELLEE, * RUTHERFOR D COUNTY VS. * Hon. J. S. Daniel, Judge STEPHEN CARL OSBORNE, * (Driving on Rev oked License and Driving Under th e Influence-4th Offense) APPELLANT. *

For Appellant : For Appellee : Guy R. Dotson, Jr. John Knox Walkup 102 South Maple Street Attorney General and Repor ter Murfreesboro, TN 37130 450 James Robertson Parkwa y Nashville, TN 37243-0493 Lisa A. Naylor Assistant Attorney Gener al 425 Fifth Avenue North Nashville, TN 37243-0493 William C. W hitesell District Attorney General Third Floor Judi cial Bldg. Murfreesboro, TN 37130

OPINION FILED: ____________________

AFFIRMED

GARY R. WADE, PRESIDING JUDGE2 OPINION The defend ant, Stephen Carl Osborne, was con victed of opera ting a motor vehicle whil e under the influence of an intoxic ant, fourth offense, and for operating a motor vehicle on a revoked driv er's license. The trial

court imposed a sentence of eleven months and tw enty-nine days for the D UI conviction, suspended all but one hundred seventy days, and ordered the remai nder to be served on probation. The trial court imposed a consecutive si x-month sentence for driv ing on revoked license, order

ed ten days in jail, and r equired the balance to be ser ved on probation. In this appeal of ri ght, the defendant presents the follow ing issues for review: (I) whether the trial court erred by failing to order a

mistrial after the jury

was exposed to evi dence of the defendant's prior convicti ons; and (II) whether the tri al court erred by faili ng to grant a new trial after the jury w

as exposed to extraneous information during deliberations.
We affirm the judgment of the trial court.
At approximately 1:00 a.m.on April 21, 1996, Officer Don F anning of the Murfreesboro Police Depar tment observed the defendant driv ing in an industrial area which had minimal la te-night traffic on the week ends. When Officer Fanning noticed the defendant turning ri ght onto a dead-end street, he dr ove through the intersection, and then retur ned to the intersection to obser ve. By that time the defendant was reapproaching the intersection. Accordi ng to Officer Fanning, the defendant failed to stop at the stop sig n before turning right. Officer Fanning then stopped the defendant's vehicle.3 Samantha Krueger, girlfri end of the defendant, stepped out of the car first and attempted to talk wi th Officer Fanning. The officer asked Ms. Krueger to step aside so that he could speak with the driver. When asked to show his driver's license, the defendant told Officer Fann ing that it had been revo ked.

Officer Fanning administered a series of field sob riety tests before determining that the defendant w as driving under the influence. He also confirmed the revoked status of the defendant's driver's license.

The defendant claimed necessity as his defense. He and Ms. Krueg er testified that he was driv ing because Ms. Krueger, who had been driving earlier that evening, had become ill. When Of ficer Fanning stopped the vehicle, however, neither the defendant nor Ms. Krueg er made such a claim.

At trial, the State presented a video tape of the stop, the field s obriety tests, and the arrest. A por tion of the video tape included questions about prior arrests for driving

on a revoked license. The State redacted the portions of the video that covered information about the prior arrests. During jury deliberations, however, the jury

asked to review the tape and the prosecution mistakenl y included some of the redacted portions. On the redacted portion of the videotape, the jury heard Officer Fanning ask the defendan t, "When was the last time you were arrested for driving

on revoked?" The tape was s topped before the defendant answered. The defendant's motion fo r a mistrial was overruled. A short time later, the jury returned w

ith verdicts of guilty for driving under the influence and driving on a revoked license.4 I The defendant's first complaint is tha t the trial court erred by failing to grant a mistrial. The defendant argues that the jury was exposed to evidence of his prior convictions for

driving on a rev

oked license by the ques tion recorded on the videotape. The state argues that the trial court correctly denied the defe ndant's motion because the challenged q uestion was not evidenc e of any prior convictions and, therefore, did not require the grant of a mistrial.

The purpose of a mistrial is to correct the damage done to the j udicial process when some event has occurred which w ould preclude an impartial v erdict. Arnold v. State , 563 S.W.2d 792, 794 (Tenn. Crim. App. 1977). The deci sion whether to grant a mist rial is within th e trial court's discr etion and will not be disturbed absent an abuse of that dis cretion. State v. Millbrooks , 819 S.W.2d 441, 443 (Tenn. Crim. App. 1991). "Gener ally a mistrial w

ill be declared in a cr

iminal case only when there i s a 'manifest necessity' r equiring such by the trial judge. Id. , 819 S.W.2d at 443. The authority to discharg e a jury is to be ex ercised only when there is a cogent reason or manifest necessity. Jones v. State , 403 S.W.2d 750, 754 (Tenn. 1966).

In State v. James Edward Ga tes , No. 01C01-9607-CR-00312, slip op. at 7 (Tenn. Crim. App., at Nash ville, Sept. 30, 1997), app. denied , (Tenn. Oct. 12, 1998), the issue before this court was whether a mistrial was required when the jury inadvertently heard a question on audiotape that alluded to the de fendant's possible prior misconduct. Specific ally, the jury hear

d on audiotape a detective ask the defendant, "Juaney [Bradford] has got you in trouble before, ain' t he?" Gates , slip op. at 7. This court held that a jury hearing a que stion on audiotape that alluded to the defen dant's p

ossibl e prior

miscond uct wi thout hearing the answ er did n ot qual ify5 as a "manife st necessity" requi ring mistrial. The court conclude d that the trial ju dge had not abused his discretion in refusing to grant a mi strial. Gates , slip op. at 7.

In this instance, the jury heard Officer Fanning's q uestion but did not hear the defendant's response. Furthermore, before hearing the question, the jury was instructed by the trial judge that ques tions were not to be consi dered as evidence. In the context of the entire record, the objec tionable portion of the videotape did not affect the result s of the trial or otherwise so prejudice the judi cial process as to preclude an i mpartial verdict. The ev idence of guilt was conv incing notwithstanding the impr oper question heard by the jury. It is our c onclusion, therefore, that there was no mani fest necessity for the mistr ial and that the trial judge did not abuse his discretion by refusing to grant a mistrial.

II The defendant also contends that the trial court erred by failing

to grant defendant's motion for a new trial because the jury

was exposed to extr

aneous information during deliberations. The defe ndant argues that Officer Fanning's question affected the reliabili ty of the verdict. The defendant al so argues that because the question was prejudicial, the burden shi fts to the prosecution to demonstrate the harmlessness of the c ommunication with the jury

.

At the motion for a new trial , the trial court found that the i ssue presented is whether the j ury was prejudic ed by the introduction of the ex traneous information. The trial judge stated as follows:

Well here's ... and I understand your argument and it makes an interesting iss ue framed for appellate review

. But as you know, we charge the jury that a question is not evidence. That evidenc e is the response to the question. And so the issue really that's raised [is: Is] this question, which is unanswered, such a piece of6 extraneous information that the jury is prejudiced in their deliberation. In overruling the defendant' s motion for a new trial, the trial judge made a further observation: But in this case, it look s like this would be the type of case in which it w

ould be an attack on the receipt by the jury of extraneous information that aff ects their verdict, and that verdict could be attacked by affidavit showing that the defendant in his position was in fact prejudiced by the quest ion. And I don't have anything to justify that. And assuming that following the charge and the law, that a question is not evidenc e, then I don't have anythi ng presented to me that would g ive rise to a basis t o conclude that the jury, us ing that extraneous informat ion, reached a conclusion that w as inappropriate for them to reach based on that information. So with those comments, I'm going to ov errule your motion.

The defendant and the State both cite Rule 606 (b) of the Tennessee Rules of Evidence. Rule 60 6(b) states that a juror may testify on the questi on of whether extraneous pr

ejudicial information was improperly brought t

o bear upon any juror. Here, the defendant nev er presented testimony by a juror as to any extraneous prejudicial

information.

Extraneous information is i nformation from a source outside the j ury. Caldararo v. Vanderbil

t University

, 794 S.W.2d 738, 742 (Tenn. App. 1990) (citing State v. Coker , 746 S.W.2d 167, 171 (Tenn. 1987)). After proof that a jur or has been exposed to extraneous prejudicial information, there a rises a rebuttable presumption of prejudice, and the bur den shifts to the prosecution to ex plain the conduct or demonstrate the harmles sness of it. State v. Young , 866 S.W.2d 194, 196 (Tenn. Crim. App. 1992).7 In order to shift the burden to the prosecution to demonstrate the harmlessness of the communication w ith the jury, the thres hold question is wheth er the statement communicated to the jury was prejudicial to the defendant. State v. Parchman , 973 S.W.2d 607, 612 (Tenn. Crim. App. 1997). See also Young , 866 S.W.2d at 196 (trial judge was best able to assess the nature of ex traneous information, as well as its effect, if any, upon the jury).

In this instance, the jury heard Officer Fanning's q uestion on videotape some two h ours aft er delibe rations h ad begun . Althoug h the ques tion is su ggestive of the fact that defendant had been previousl y arrested for driv

ing on a revoked license, the jury did

not hear the defendant's answer.Because the jury had been instructed that questions alone are not evidence, it is our view that the statement communicated to the jury was not prejudicial to the defendant . Moreover, the jury had sufficient reason absent Officer Fanni ng's question to have found that the defendant had been driving on a r evoked license.
Accordingly, the j udgment of the trial court is affirmed.

_____________________________ Gary R. Wad e, Presiding Judge CONCUR:

_______________________________ Thomas T. W oodall, Judge

_______________________________ James Curwood W itt, Jr., Judge