FILED

December 21, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

SEPTEMBER 1998 SESSION

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

APPELLEE, * RUTHERFORD COUNTY

VS. * Hon. J. S. Daniel, Judge

STEPHEN CARL OSBORNE, * (Driving on Revoked License and 

Driving Under the Influence-4th Offense)

APPELLANT. *

For Appellant: For Appellee:

Guy R. Dotson, Jr. John Knox Walkup

102 South Maple Street Attorney General and Reporter

Murfreesboro, TN 37130 450 James Robertson Parkway

Nashville, TN 37243-0493

Lisa A. Naylor

Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243-0493

William C. Whitesell

District Attorney General

Third Floor Judicial Bldg.

Murfreesboro, TN 37130

OPINION FILED: ____________________

AFFIRMED 

GARY R. WADE, PRESIDING JUDGE
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OPINION

The defendant, Stephen Carl Osborne, was convicted of operating a

motor vehicle while under the influence of an intoxicant, fourth offense, and for

operating a motor vehicle on a revoked driver's license. The trial court imposed a

sentence of eleven months and twenty-nine days for the DUI conviction, suspended

all but one hundred seventy days, and ordered the remainder to be served on

probation. The trial court imposed a consecutive six-month sentence for driving on

revoked license, ordered ten days in jail, and required the balance to be served on

probation. In this appeal of right, the defendant presents the following issues for

review:

(I) whether the trial court erred by failing to order a

mistrial after the jury was exposed to evidence of the

defendant's prior convictions; and 

(II) whether the trial court erred by failing to grant a new

trial after the jury was 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 Fanning of

the Murfreesboro Police Department observed the defendant driving in an industrial

area which had minimal late-night traffic on the weekends. When Officer Fanning

noticed the defendant turning right onto a dead-end street, he drove through the

intersection, and then returned to the intersection to observe. By that time the

defendant was reapproaching the intersection. According to Officer Fanning, the

defendant failed to stop at the stop sign before turning right. Officer Fanning then

stopped the defendant's vehicle.
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Samantha Krueger, girlfriend of the defendant, stepped out of the car

first and attempted to talk with 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 Fanning that it had been revoked.

Officer Fanning administered a series of field sobriety tests before

determining that the defendant was 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. Krueger

testified that he was driving because Ms. Krueger, who had been driving earlier that

evening, had become ill. When Officer Fanning stopped the vehicle, however,

neither the defendant nor Ms. Krueger made such a claim. 

At trial, the State presented a video tape of the stop, the field sobriety

tests, and the arrest. A portion 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 mistakenly included

some of the redacted portions. On the redacted portion of the videotape, the jury

heard Officer Fanning ask the defendant, "When was the last time you were

arrested for driving on revoked?" The tape was stopped before the defendant

answered. The defendant's motion for a mistrial was overruled. A short time later,

the jury returned with verdicts of guilty for driving under the influence and driving on

a revoked license. 
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I

The defendant's first complaint is that 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 revoked license by the question recorded on the

videotape. The state argues that the trial court correctly denied the defendant's

motion because the challenged question was not evidence 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 judicial

process when some event has occurred which would preclude an impartial verdict. 

Arnold v. State, 563 S.W.2d 792, 794 (Tenn. Crim. App. 1977). The decision

whether to grant a mistrial is within the trial court's discretion and will not be

disturbed absent an abuse of that discretion. State v. Millbrooks, 819 S.W.2d 441,

443 (Tenn. Crim. App. 1991). "Generally a mistrial will be declared in a criminal

case only when there is a 'manifest necessity' requiring such by the trial judge. Id.,

819 S.W.2d at 443. The authority to discharge a jury is to be exercised 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 Gates, No. 01C01-9607-CR-00312, slip op.

at 7 (Tenn. Crim. App., at Nashville, 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 defendant's possible

prior misconduct. Specifically, the jury heard 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 question on audiotape that alluded to

the defendant's possible prior misconduct without hearing the answer did not qualify
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as a "manifest necessity" requiring mistrial. The court concluded that the trial judge

had not abused his discretion in refusing to grant a mistrial. Gates, slip op. at 7. 

In this instance, the jury heard Officer Fanning's question but did not

hear the defendant's response. Furthermore, before hearing the question, the jury

was instructed by the trial judge that questions were not to be considered as

evidence. In the context of the entire record, the objectionable portion of the

videotape did not affect the results of the trial or otherwise so prejudice the judicial

process as to preclude an impartial verdict. The evidence of guilt was convincing

notwithstanding the improper question heard by the jury. It is our conclusion,

therefore, that there was no manifest necessity for the mistrial 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 extraneous

information during deliberations. The defendant argues that Officer Fanning's

question affected the reliability of the verdict. The defendant also argues that

because the question was prejudicial, the burden shifts to the prosecution to

demonstrate the harmlessness of the communication with the jury. 

At the motion for a new trial, the trial court found that the issue

presented is whether the jury was prejudiced by the introduction of the extraneous

information. The trial judge stated as follows:

Well here's ... and I understand your argument and it

makes an interesting issue framed for appellate review. 

But as you know, we charge the jury that a question is

not evidence. That evidence is the response to the

question. And so the issue really that's raised [is: Is] this

question, which is unanswered, such a piece of
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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 looks like this would be the type

of case in which it would be an attack on the receipt by

the jury of extraneous information that affects their

verdict, and that verdict could be attacked by affidavit

showing that the defendant in his position was in fact

prejudiced by the question.

And I don't have anything to justify that. And

assuming that following the charge and the law, that a

question is not evidence, then I don't have anything

presented to me that would give rise to a basis to

conclude that the jury, using that extraneous information,

reached a conclusion that was inappropriate for them to

reach based on that information. So with those

comments, I'm going to overrule your motion.

The defendant and the State both cite Rule 606(b) of the Tennessee

Rules of Evidence. Rule 606(b) states that a juror may testify on the question of

whether extraneous prejudicial information was improperly brought to bear upon any

juror. Here, the defendant never presented testimony by a juror as to any

extraneous prejudicial information. 

Extraneous information is information from a source outside the jury. 

Caldararo v. Vanderbilt 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 juror has

been exposed to extraneous prejudicial information, there arises a rebuttable

presumption of prejudice, and the burden shifts to the prosecution to explain the

conduct or demonstrate the harmlessness of it. State v. Young, 866 S.W.2d 194,

196 (Tenn. Crim. App. 1992). 
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In order to shift the burden to the prosecution to demonstrate the

harmlessness of the communication with the jury, the threshold question is whether

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 extraneous

information, as well as its effect, if any, upon the jury).

In this instance, the jury heard Officer Fanning's question on videotape

some two hours after deliberations had begun. Although the question is suggestive

of the fact that defendant had been previously arrested for driving 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 Fanning's question to have found that the

defendant had been driving on a revoked license. 

Accordingly, the judgment of the trial court is affirmed.

_____________________________

Gary R. Wade, Presiding Judge

CONCUR:

_______________________________

Thomas T. Woodall, Judge

_______________________________

James Curwood Witt, Jr., Judge