IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

December 10, 2002 Session

STATE OF TENNESSEE v. GREGORY DALE CLAYTON

Direct Appeal from the Criminal Court for Davidson County

No. 2001-T-84 Steve R. Dozier, Judge

No. M2002-00058-CCA-R3-CD - Filed July 3, 2003

The appellant, Gregory Dale Clayton, was found guilty by a jury in the Davidson County Criminal

Court of driving under the influence (DUI). The trial court imposed a sentence of eleven months and

twenty-nine days incarceration in the Davidson County Jail. Additionally, the appellant pled guilty

to a violation of the implied consent law and suffered the forfeiture of his driver’s license for one

year. On appeal, the appellant raises two issues relating to the rendering of the jury’s verdict. Upon

review of the record and the parties’ briefs, we affirm the judgment of the trial court. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which DAVID G. HAYES and JOHN

EVERETT WILLIAMS, JJ., joined.

Fletcher W. Long, Nashville, Tennessee, for the appellant, Gregory Dale Clayton.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;

Victor S. Johnson, III, District Attorney General; and Kristen K. Shea, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

Shortly after midnight on April 12, 2000, the appellant, a criminal defense attorney

and former police officer, was stopped for speeding by Officer Robert Conley with the Metropolitan

Nashville Police Department (Metro). Officer Conley “clocked” the appellant driving fifty-seven

miles per hour (mph) in a thirty-five mph zone. Officer Conley activated his blue lights and pursued

the appellant. In response, the appellant parked his car on the side of the road. 

Officer Conley got out of his vehicle and walked to the driver’s window of the

appellant’s vehicle and requested the appellant’s driver’s license. The appellant slightly opened his

window and passed the officer his license. Officer Conley immediately noticed a strong odor of
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alcohol emanating from the appellant and his vehicle. The appellant was uncooperative and hostile

so Officer Conley requested assistance from Stephen Beck, a fellow Metro officer who had been

parked nearby when the pursuit was initiated. 

AfterOfficer Beck arrived, Officer Conley instructed the appellant to exit his vehicle.

In response, the appellant rolled up his window, began talking on his cellular telephone, and refused

to get out of the vehicle. After instructing the appellant several times to exit his vehicle, Officer

Conley informed the appellant, “I’m gonna give you the count of three . . . then we’re gonna take you

outta the car.” Upon receiving the warning, the appellant exited the vehicle, but immediately

informed the officers that he would not perform any field sobriety tests. The appellant also refused

to take a breathalyzer test. Both Officer Conley and Officer Beck smelled alcohol on the appellant

and in the car. The officers also observed that the appellant was unsteady on his feet and his speech

was slurred. The officers determined that the appellant was obviously too intoxicated to safely

operate his vehicle.

Officer Conley arrested the appellant and placed him in the back of the patrol car.

While sitting in the patrol car, the appellant informed Officer Conley that he would submit to a blood

test if his attorney could be present for the drawing of his blood. Officer Conley informed the

appellant that he would not be allowed to have his attorney present for a blood test. The appellant

then instructed Officer Conley to “[j]ust take me to Booking.”

Based upon the foregoing facts, the jury found the appellant guilty of DUI. After the

verdict was returned, the appellant requested that the trial court poll the jury. The trial court then

asked each juror if the verdict of guilt was his or her individual verdict. Each juror individually

responded that it was; however, when juror Linda Helms was questioned, she hesitated

approximately five seconds before responding that she concurred in the verdict of guilt.

Subsequently, the trial court sentenced the appellant to eleven months and twentynine days incarceration on the DUI conviction. The court suspended all but ten days of the sentence.

Thereafter, the appellant moved for a new trial. At the appellant’s hearing on his

motion for new trial, the appellant complained that the trial court should have questioned Helms

regarding her hesitation during the jury poll. Additionally, the appellant contended that juror Helms

only agreed with the verdict of guilt because she believed that if she did not join in the verdict the

trial court would “be very upset [with her].” 

Helms testified at the hearing on the motion for new trial. She explained that she

hesitated during the jury poll because she did not believe that the appellant was guilty. However,

she felt “pressured” to render a guilty verdict because someone made the statement that if the verdict

was not unanimous, the trial court would be upset. Helms stated that she believed the statement was

made by the jury foreperson, but another member of the jury could have made the statement. She

also stated that some of her fellow jurors “were offering us cake to change our minds.” She

maintained that if the trial court had inquired regarding her hesitation, she would have explained that
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 Federal Rule of Criminal Procedure 31(d) provides that “[a]fter a verdict is returned but before the jury is

discharged, the court must on a party's request, or may on its own, poll the jurors individually. If the poll reveals a lack

of unanimity, the court may direct the jury to deliberate further or may declare a mistrial and discharge the jury.”

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she did not agree with the verdict. Regardless, Helms acknowledged that she was “sure” that the jury

was instructed “to try and reach a unanimous verdict, as long as that didn’t do violence to an

individual’s opinion.” 

Gale Conner, another juror, also testified at the hearing on the motion for new trial.

Conner stated that if Helms had expressed disagreement with the verdict, then “I probably woulda

came forward, too.” She also believed that the jury foreperson made the statement that the trial court

would be mad at the jury if they did not render a unanimous verdict. She understood the trial court’s

instruction that the jury must render a unanimous verdict. Conner conceded that she remembered

reading in the jury charge that a unanimous verdict should be rendered only if the verdict did not do

violence to an individual’s opinion. 

After considering the foregoing proof, the trial court entered an order denying the

appellant’s motion for new trial. On appeal, the appellant raises the following issues for our review:

(1) whether the trial court erred in not inquiring as to the source of Helms’ hesitation upon being

polled and (2) whether the “jurors were exposed to improper extraneous influence(s) which were

prejudicial to the Appellant’s right to a fair and impartial trial.” 

II. Analysis

A. Jury Poll

Tennessee Rule of Criminal Procedure 31(d) provides “[w]hen a verdict is returned

and before it is recorded the jury shall be polled at the request of any party or upon the court’s own

motion. If upon the poll, there is not unanimous concurrence the jury may be directed to retire for

further deliberations or may be discharged.” Rule 31 essentially follows its federal counterpart. See

Tenn. R. Crim. P. 31, Advisory Commission Comments; see also Fed. R. Crim. P. 31.1

 Because

there is no Tennessee law on point, we will look to federal law for guidance as to the standard of

review regarding a trial court’s determinations in a polling situation.

An examination of the application of Federal Rule of Criminal Procedure 31(d)

reveals that a trial court’s method of polling the jury is subject to an abuse of discretion standard.

See United States v. Miller, 59 F.3d 417, 420 (3rd Cir. 1995); United States v. Sturman, 49 F.3d

1275, 1282 (7th Cir. 1995); Gov’t of the Virgin Islands v. Hercules, 875 F.2d 414, 418 (3rd Cir.

1989). Additionally, federal courts have also noted that Rule 31(d) “invests the trial judge with a

measure of discretion in assessing the impact of a dissenting vote during a jury poll, and the

reasonable exercise of this discretion should be accorded proper deference by a reviewing court.”

United States v. Brooks, 420 F.2d 1350, 1353 (D.C. Cir. 1969); see also United States v. Lockhart,

366 F. Supp. 843, 848 (E.D. Pa. 1973). As the ninth circuit district court noted in United States v.

McClintock, 748 F.2d 1278, 1293 (9th Cir. 1984), only the trial court can determine whether an

affirmative response to a jury poll is “tainted, coerced or in any other way demonstrative of
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uncertainty.” See also United States v. Gomez-Lepe, 207 F.3d 623, 630 (9th Cir. 2000) (stating that

“the trial judge has broad discretion to decide how to proceed in a polling situation”).

Additionally, we note that in Tennessee civil cases, no particular method of polling

a jury is mandated; thus, it rests within the trial court’s discretion to determine the manner of polling

the jury. See Dixon Stave & Heading Co. v. Archer, 291 S.W.2d 603, 608 (Tenn. Ct. App. 1956).

Correlatively, Tennessee appellate courts have stated that “no particular form of answer is essential

on the polling of a jury, it being sufficient if the answer of the juror . . . indicates with reasonable

certainty that the verdict is his [or her] own.” Id. at 609; see also Davis v. Wilson, 522 S.W.2d 872,

883 (Tenn. Ct. App. 1974); Smith v. Weitzel, 338 S.W.2d 628, 638 (Tenn. Ct. App. 1960). Thus,

it stands to reason that the trial court’s determination of whether a juror’s answer to the jury poll is

equivocal is within the trial court’s discretion. 

After the jury was dismissed, the appellant brought Helms’ hesitation to the attention

of the trial court. The trial court observed, “I noted that Ms. Helms hesitated for about five seconds,

is what I would think, and indicated that, yes, that was her verdict. I made no notation, or didn’t note

at all, notice at all anything about her shaking her head.” Clearly, the trial court did not interpret

Helm’s hesitation as an expression of her disagreement with the jury’s verdict. See Donahue v.

George, 329 S.W.2d 836, 839 (Tenn. Ct. App. 1959). We discern no reason why the trial court, once

satisfied with the unanimity of the verdict, should have conducted further inquiries. As in the case

of jury voir dire, “[t]he trial court has the opportunity to both visually and auditorially observe the

demeanor of . . . jurors . . ., and accordingly, evaluate their credibility.” State v. Keen, 31 S.W.3d

196, 228 (Tenn. 2000) (appendix). We conclude that the trial court committed no error.

B. Disagreement with Verdict

The crux of the appellant’s complaints is that two jurors disagreed with the guilty

verdict. In support of his complaint, the appellant had the two jurors testify at the hearing on the

motion for new trial. Initially, we note that “[p]arties seeking a new trial because of alleged jury

misconduct must at the outset satisfy the court that they have admissible evidence on the issue.”

Caldararo v. Vanderbilt Univ., 794 S.W.2d 738, 741 (Tenn. Ct. App. 1990). 

Tennessee Rule of Evidence 606 governs the competency of a juror as a witness.

Rule 606(b) provides:

Upon an inquiry into the validity of a verdict or indictment, a juror

may not testify as to any matter or statement occurring during the

course of the jury’s deliberations or to the effect of anything upon any

juror’s mind or emotions as influencing that juror to assent to or

dissent from the verdict or indictment or concerning the juror’s

mental processes, except that a juror may testify on the question of

whether extraneous prejudicial information was improperly brought

to the jury’s attention, whether any outside influence was improperly

brought to bear upon any juror, or whether the jurors agreed in

advance to be bound by a quotient or gambling verdict without further
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discussion; nor may a juror’s affidavit or evidence of any statement

by the juror concerning a matter about which the juror would be

precluded from testifying be received for these purposes.

Furthermore, the advisory commission comments to the rule explain that “[a]fter verdict, part (b)

would come into play. A juror may testify . . . in connection with a motion for new trial, but only

in the limited circumstances of: (1) ‘extraneous prejudicial information’ finding its way into the jury

room, (2) improper outside pressure on a juror, or (3) a quotient or gambling verdict.” Tenn. R.

Evid. 606, Advisory Commission Comments; see also Caldararo, 794 S.W.2d at 742; David Lee

McNish v. State, No. 03C01-9712-CR-00550, 1999 WL 604436, at **14-15 (Tenn. Crim. App. at

Knoxville, Aug. 12, 1999). Extraneous information is information coming from a source outside

the jury. See State v. Coker, 746 S.W.2d 167, 171 (Tenn. 1987); see also Neil P. Cohen et al.,

Tennessee Law of Evidence, § 6.06[4], at 6-51 (LEXIS publishing, 4th ed. 2000).

In the instant case, both Helms and Conner testified at the motion for new trial

hearing that they changed their verdict because the jury foreman had told them that the trial court

would be “upset” if the jury did not render a unanimous verdict. This does not constitute

“extraneous information” or “outside pressure” as contemplated by Rule 606(b). See Montgomery

v. State, 556 S.W.2d 559, 561 (Tenn. Crim. App. 1977); State v. Ricky Eugene Cofer, No. E2000-

00532-CCA-R3-CD, 2000 WL 1843303, at *3 (Tenn. Crim. App. at Knoxville, Dec. 15, 2000).

Accordingly, the testimony presented by Helms and Conner was not admissible under Rule 606(b).

This issue is without merit.

III. Conclusion

Finding no error, we affirm the judgment of the trial court. 

___________________________________ 

NORMA McGEE OGLE, JUDGE