### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Decem ber 10, 200 2 Session
STATE OF TENNESSEE v. GR EGORY DALE C LAYTON Direct Appeal from the Criminal Court for Davidson County

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

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

The appella

nt, Greg ory

Dale Cla yto n, was found guilt

y by a jury in the Davidson County Criminal Courtof driving under the influence (DUI ). The trial court imposed a sentence of eleven months and twenty-nine

days incar

ceration in the DavidsonCounty Jail. Additionally, the appella nt pled g uilty to a violation of the implied consent law and suffered the forfe iture of his dr iver’ s license for one year. On appeal, the appe llant rai ses two iss ues rela ting tothe rendering of the jury ’s verdict. Upon review of the record and the par ties’ briefs, we affirm the judgment of the tria l court. Tenn. R. App.P. 3 Appe al as of Right ; Judgme nt of the Cr

iminal Court is Affirm

ed.
N ORMA M C G EE O GLE , J., delivered the opinion of the court, in which D AVID G. H AYES and J OHN E VERE TT W IL LI AMS , JJ., joined. Fletcher W. Long , Nashville, Tennessee, for the appellant, Greg ory Dale Clay ton. Paul G. Summers, Attorney Gene ral and Reporter; David H. Findley , AssistantAttorney Genera l; Victor S. Johnson, III , District Attorney Genera l; and Kristen K. Shea, Assistant District Attorney General, for the appellee, State of Te nnessee. OPINION
I. Fact ual Backgro

und Shortly after mi dnight on

April12, 2000, the appellant, a criminal defense attorney and former p olice of

ficer, was stopp ed for sp eeding by O fficer

Robert Con

ley withthe 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.
Offi cer Co nl ey 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 openedhis window and passed th e of ficer his license. Officer Conley immediately noticed a strong odor of-2-

alcohol emanating from the appella nt and his vehicle . The app ellant wa s uncoope rative a nd hostile so Officer Conley

request ed assistance from Stephen Beck, a fe llow Metro officer who had been parked nearby

when the pursuit was initiated.
After Of ficer Beck arrived, Of

ficer 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 seve ral times to exit his vehicle, Officer Conley informedthe appellant, “I’m g onna give y ou the count of three . . . then we’re gonna take y ou outta the car.” Upon receiving the warning, the appellant exited the vehicl e, but immed iately informedthe officers that hewould 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 observe d that the appellant was unsteady on his feet and his speech was slurred. The offi ce rs deter mined tha

t the appe

llant wasobviously

too intoxica

ted to saf ely operate his vehicle.

Officer Conley arre sted the appellant and placed him in the back of the patrol ca r. While sitting in the patrol car, the appellant informed Office r Conley that he would submit to a blood test if his attorney could be pr esen t for the d

rawin g 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 tria l court poll the jur y. The trial court then askedea ch juror

if th e verdict of guil

t was his or

her individual ver

dict. Eac h juror in dividually responded that it wa s; however, when juror Linda Helms was questioned, she hesitated approxima

tely five sec onds befo

re resp onding th at she co ncurre d in the ve rdict of g uilt.
Su bs eq ue nt ly, the trial court sentenced the appellan t to el ev en mo nt hs an d t we nt ynine days incar

ceration on the DUI c onviction. The court suspended all but ten days of the sentence. Thereafter, the appe llant mo ved for a new tria l. At the a

ppellant ’s hear

ing on his motion for new trial, the appellant complained that the t rial cou rt should h ave que stioned He lms regarding her hesitation dur

ing the j ury

poll. Addit

ionally , the appe

llant con tended th at juror Helms only ag reed with the verdict of guilt because she believed tha t 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 explaine d that she hesitated durin g 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 unanim

ous, the tr ial cour t would be

upset. He

lms 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 of fering us cake to chang e our minds.” She maintained that

if the trial court had inquired regarding her hesitation, she would have explained that1 Federal Rul e of Crimi nal Procedure 31(d) provi des that “[a]f ter a verd ict is returne d bu t befor e the ju ry is disc harg ed, the co urt mus t on a p arty's requ est, or m ay on its o wn, po ll the juro rs individ ually. If the poll r eveals a lack of una nimity, the c ourt m ay dire ct the jur y to de libera te further o r may d eclare a mistrial a nd d ischarg e the ju ry.” -3- she did notagree with the verdict. Reg ardless, Helms acknowledged that she wa s “sure” that the jury wa s inst ructed “to try

and reach a unanimous verdict, as long a s that didn’t do violence to an individual’s opinion.”

Gale Conner, another

juror, also testified at the hearing on the motion for new tria l. Conner stated that if Helms had expressed disagreement withthe verdict, then “I proba bly 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

charg e that a

unanimousverdict

should be r

endere d only

if the ve rdict did not do violence to an individual’s opinion.

After considering the foregoing proof, the trial court

en tered an order deny

ing the appellant’s motion for new trial. On appeal, the appellant raises the following issues for our review: (1) whether

the trial court er red in not inquiring as to the s ource of

Helm s’ hesitat ion upon being polled and (2) whether the “jurors were exposed to impro per extr aneous 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 Pr

ocedure 31(d) pr ovides “[w ]hen a ver

dict is returned and before

it is reco rded the jury shall be p olled at th

e reque st of any par

ty or upon the court’s own mo ti on. 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 federa l counterpart. See Tenn. R. Cr im . P . 3 1, Ad vi so ry Com mission Comme nts; see also

Fed. R. Crim. P. 31. 1 Becau se there is no Tennessee law on p oint , 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 examinatio n of the a pplicatio n of Fed

eral Rule of Cr iminal Pr ocedure 31(d) reveal s that a trial cou rt’s meth od of polling the jury is subject to an abuse of discretion standard. See United States v. Miller , 59 F. 3d 417, 420 (3 rd Cir. 1995) ; United States v. Sturman , 49 F.3d 1275, 1282 (7th C ir. 1995) ; Gov’t of t he Virg in Isl ands v. Hercules , 875 F.2d 414, 418 (3 rd Cir. 1989). Additionally, federa l courts have also noted that Rule 31(d) “ inve sts the trial judge with a measure of discret ion in asse ssing the impact of a dissenting vote during a jury poll, and the reasona ble exercise of this discretion should be accorded proper de f erence b y a revie

wing court.” United States v. Brooks , 420 F.2d 1350, 1353 (D.C. Cir. 1969); see also United States v. Lock hart, 366 F. Supp. 843, 848 (E.D. Pa. 1973). As the ninth circuit district court noted in United States v. McClintock , 748 F.2d1278, 1293 (9 th Cir. 1984), only the trial court ca n determine whether an affirmative respon se to a jury poll is “tainted, coe rced or in any

other way de

monstrative of-4-

uncertainty.” See also United States v. Gomez-Lepe , 207 F.3d 623, 630 (9 th Cir. 2000) (stating that “the trial judge has broad discretion to decide how to proceed in a polling situation”).
Ad di ti on al ly, we note th at inTennessee civil cases, no particular method of polling a jury is mandated; thus, it rests within the trial court’s discre tion 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). Co rr el at iv el y, Tennessee appellate courts have stated tha t “no particular

form of answer is essential on the polling of a jury , it being suffi cient if the answer of the jur or . . . indi cates wi

th reaso nable certain ty that the verdict is his [or her] own.” Id. at 609; see also Davis v. Wilson , 522 S.W.2d 872, 883 (Ten n. Ct. App. 1974); Smith v. Weitzel , 338 S.W.2d 628, 638 (Ten n. Ct. App. 1960). Th

us, it stands to r

eason tha t the tria l court’sdetermin ation of w hether a juror’s a nswer to t he jury poll is equivocal is within the trial court’s discretion.

After the jury was dismissed, the appe llant brought Helms’ hesitation to the attention of the trial court. The trial court obs erved, “I noted that Ms. Helms hes itated fo r about f ive seco nds, is what I would think, and indicate d that, y es, that w as her ve

rdict. I made no notation, or

didn’t not

e at a ll, notice at all anything about her shaking her head.” Clea rly, the trial court did no t interpre t Helm’s hesitation as an expression of her disagreement with the jury ’s verdict. See Donahue v. George , 329 S. W.2d 8 36, 83 9 (Te nn. Ct . App . 1959 ). We

discern no reason why

the trial court, once satisfied with the unanimity of the verd ict, shoul d have c onducted further inquiries . As in the c ase of jury voir dire, “ [t]he trial court has the op portunity to both visually and auditorially

observe the de me an or of

. . . j ur or s .
. . , a nd ac co rd in gl y, evaluat e 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 appel lant’s co mplaints is that two ju rors disa greed with the g

uilty verdict

. In suppor

t 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

mu st at th e o ut se t s at is fy t he court th at they have

admissible evidence on the issue.” Caldararo v. Vanderbilt Univ. , 794 S.W.2d 738, 741 (Tenn. Ct. App. 1990).

Tennessee Rule of Ev

idence 6 06 gove

rns the c ompetency of

a juror a s a witnes s. Rule 606( b) provid es: Upon an inqui ry 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 jur y’ s deliber

ations or to the effect of any

thing upon any juro r’s min d or emotions as influencing that juror to assent to or dissentfrom the verdict or indictment or concerning the juror’s mental processes, except that a juror may testify on t

he q uestion of whether extraneous prejudicial information was improperly broug ht to the jury’s attention, whether any outside influence was improper ly brought to bear u

pon any juror, or whether the juror s agreed in advance to be bound by a quotient or g ambling verdict without further-5- discussion; nor may a juror ’s affidavit or evidence of any statement by the juror concerning a matter a bout which the juror woul d be preclud ed from te stify

ing be r eceive d for the se purpos es. Furthermore, the advisory commission comments to the rule explain that “[a]fter verdict, pa rt (b ) would com

e into play. A juror may

testify . . . in connection with a motion for

new tria l, but only in the limited circumstances of: (1) ‘extraneous prejudicial information’ finding its way into the jury room, (2) impro

per outsi de press ure on a j uror, or (3) a quoti ent or gamblin g verd ict.” Te nn. R. Evid. 606, Advis ory

Commission Co mments; see also Caldararo , 794 S.W.2d a t 742; Davi d Lee McNish v. State , No. 03C01-9712-CR-00550, 1999 WL 604436, at **14-15 (Tenn. Crim. App. at Knoxvi lle, Aug. 12, 1999). Extraneous information is information coming from a source outside the jur y. See State v. Coker , 746 S.W.2d 1 67, 171 (T enn. 1987 ); see also Neil P. Cohen et al., Tennessee Law

of Evidence , § 6.06[4], at 6-51 (LEXIS publishing, 4th e d. 2000).
In the instant case, both He lms and Co nner testified at the motion for new trial hearing that they chang ed their verdict because the jury foreman had told t

hem that th e trial court woul d be “u pset” if t

he jury did not re

nder a un animous ve

rdict. Th

is does not

constitute “extraneous information” or “outside pressure” as contemplated by Rule 606(b). See Montgomery v. State , 556 S.W.2d 559, 561 (Ten n. Crim. Ap

p. 1977); State v. Ricky Euge ne Cofer , No. E2000- 00532-CCA-R3-CD, 200 0 W L 184 3303, at *3 (Tenn. Crim. App. at Knoxville, Dec. 15, 2000). Ac co rd in gl y, the testimony presented by Helms and Conner wa s not admissible under Rule 606(b). This issue

is without me

rit.
III. Conclusion Finding no error, we affir m the judgment of the trial court.

___________________________________ NORMA McGEE OGLE, JUDGE