        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs October 29, 2014

          STATE OF TENNESSEE v. WILLIAM DARELLE SMITH

                 Appeal from the Criminal Court for Davidson County
                     No. 2007-C-2675    Seth W. Norman, Judge




              No. M2014-00059-CCA-R3-CD           - Filed January 7, 2015


A jury convicted the defendant, William Darelle Smith, of first degree (premeditated)
murder, and he was sentenced to life in prison. On appeal, this court affirmed the denial of
the motion for a new trial. The defendant appealed a single issue to the Tennessee Supreme
Court: that his right to an impartial jury was compromised because the trial court did not hold
a hearing after the discovery, during jury deliberations, that a juror was not only acquainted
with one of the State’s witnesses but had sent the witness a communication through
Facebook complimenting her on her testimony. The Tennessee Supreme Court concluded
that the trial court had erred in refusing to hold a hearing and remanded the case. After a
hearing during which the juror and the witness testified regarding the nature of both their
relationship and the communication, the trial court again denied the defendant a new trial.
The defendant appeals. We conclude that the State sufficiently rebutted any presumption of
prejudice raised by the juror’s extrajudicial communication or by his concealment of his
acquaintance with the witness, and accordingly we affirm the judgment of the trial court.


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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the Court, in which ROGER A. PAGE , and
R OBERT H. M ONTGOMERY, J R., JJ., joined.

Dawn Deaner, District Public Defender; and Joan Lawson and Michael Engle (at hearing),
and Jeffrey A. DeVasher and Emma Rae Tennent (on appeal), Assistant District Public
Defenders, for the appellant, William Darelle Smith.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Victor S. Johnson, III, District Attorney General; and Katrin Miller, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                            OPINION

                       FACTUAL AND PROCEDURAL HISTORY




       On June 4, 2007, a passing motorist discovered the body of the defendant’s wife,1
Zurisaday Villanueva, lying by the side of the road; she had been shot twice. State v. Smith,
418 S.W.3d 38, 42 (Tenn. 2013). At trial, the State introduced testimony and DNA evidence
implicating the defendant.

       The defendant’s father testified that he had loaned his car to the defendant and that
the defendant was driving it in June 2007. On the day after the discovery of the victim’s
body, the defendant and his father drove the car to Chicago and left it with a family member.
State v. William Darelle Smith, No. M2010-01384-CCA-R3-CD, 2012 WL 8502564, at *2
(Tenn. Crim. App. Mar. 2, 2012). The car was impounded by Chicago police, and the
victim’s DNA was recovered from blood spots found on the passenger door control panel and
the passenger headrest. Id. at *4-5. When the defendant’s father discovered that the victim
had been shot he “tried to get [the defendant] to turn himself in.” Id. at *2.

        The defendant’s cousin, Nakeda Kirby, testified that the defendant told her about the
homicide. Id. The defendant told Ms. Kirby that he and the victim were fighting, that the
victim brandished a gun, and that the gun went off during a struggle. Id. He told her that he
tried to move the victim, but she grabbed his hand and the gun went off again. Id. At the
time he told Ms. Kirby about the homicide, it was not publicly known that the victim had
been shot twice. Id.

       Julia Crawford, the defendant’s girlfriend, testified that she had been out with the
defendant on the Friday before the crime. Id. at *3. As they were leaving the defendant’s
apartment, the defendant saw the victim, told Ms. Crawford that the victim was armed, and
then laid a gun in Ms. Crawford’s lap, telling her to kill the victim. Id. She believed he was
serious. Id. After the defendant drove Ms. Crawford home and pulled into her driveway, he
held a gun to Ms. Crawford’s head, instructed her not to cry, and asked, “Are you gonna be


       1
        Witnesses at trial testified both that the victim was the defendant’s wife and that the victim
was the defendant’s girlfriend. State v. William Darelle Smith, No. M2010-01384-CCA-R3-CD,
2012 WL 8502564, at *2 n.1 (Tenn. Crim. App. Mar. 2, 2012).

                                                 -2-
with me, you gonna stand by my side[?]” Ms. Crawford was scared and said she would. Id.
On a Sunday night after the homicide, the defendant confessed to Ms. Crawford that he had
killed the victim. Id.

         As part of the State’s case, the prosecution presented the testimony of Dr. Adele
Lewis:

                Dr. Lewis, the assistant medical examiner who performed [the
                victim’s] autopsy, testified that [the victim] had been shot twice,
                once in the chest and once in the back of the head. While Dr.
                Lewis could not ascertain which shot had been fired first, she
                stated that [the victim] could have survived the chest wound
                with proper medical attention but that she would not have
                survived the head wound. She also testified that the shots had
                been fired from an “indeterminate range” and that she found no
                evidence that the muzzle of the pistol had been held against [the
                victim’s] skin. Dr. Lewis concluded that [the victim’s] death
                was a homicide.

Smith, 418 S.W.3d at 43.

        During voir dire, the jurors were never asked if they were acquainted with Dr. Lewis,
despite the fact that three of the jurors were employed at Vanderbilt University Medical
Center, where Dr. Lewis had completed a residency. Id. at 42. The trial court instructed the
jury at the beginning of trial that it would be “highly improper” to do anything such as
“taking [a] cell phone and texting and trying to find out about a trial or things like that,”
admonishing the jury that it must decide solely on the evidence presented in the courtroom.
Id. In its preliminary instructions, the trial court also warned the jury:

                During the course of the trial, you should not talk with any
                witnesses, defendants, or attorneys involved in this case. Please
                do not talk with them about any subject whatsoever. You may
                see them in the hallway, on an elevator, or at some other
                location. If you do, perhaps the best standing rule is not to say
                anything.

Id. This admonition was not repeated, although the trial court instructed the jury before they
were dismissed for the day that the jurors were to remember its prior instructions. Id. n.2.

         The next day, the trial court charged the jury, and it began deliberating. About one

                                                -3-
hour into deliberations, the trial judge received an email from Dr. Lewis disclosing an
interaction she had with one of the jurors on Facebook after she had given her testimony.
The email stated:

              Judge Norman,

              I can’t send you actual copies of the emails since Facebook is
              blocked from my computer here at work, but here is a transcript:

              Scott Mitchell: “A-dele!! I thought you did a great job today on
              the witness stand...I was in the jury...not sure if you recognized
              me or not!! You really explained things so great!!”

              Adele Maurer Lewis: “I was thinking that was you. There is a
              risk of a mistrial if that gets out.”

              Scott Mitchell: “I know...I didn’t say anything about you...there
              are 3 of us on the jury from Vandy and one is a physician
              (cardiologist) so you may know him as well. It has been an
              interesting case to say the least.”

              I regret responding to his email at all, but regardless I felt that
              this was a fairly serious violation of his responsibilities as a
              juror and that I needed to make you and [G]eneral Miller aware.
              I did not recognize the above-referenced cardiologist or any
              other jurors.

              Adele Lewis, MD

        After the guilty verdict, defense counsel asked the court to conduct a hearing on the
interaction above. The trial court stated that it was “satisfied” with the communication from
Dr. Lewis and did not believe further inquiry was necessary. Id. at 44. The Tennessee
Supreme Court concluded that the trial court should have held a hearing to determine
whether there was cause to disqualify the juror. Id. at 48. The Court noted that the email
provided reliable and admissible evidence that extra-judicial communication occurred. Id.
Accordingly, the defendant was entitled to a rebuttable presumption of prejudice and the
State was required to demonstrate that the communication was harmless. Id. Reviewing the
decision not to conduct a hearing de novo, the Tennessee Supreme Court concluded that the
trial court erred. Id. The Court instructed the trial court to inquire into “‘(1) the subject
matter of the contact, (2) to whom it was directed, (3) the medium of the exchange, (4)

                                              -4-
whether any responses were received, and (5) the content of the communications.’” Id. at 49
(quoting J. Paul Zimmerman, A Practical Guide to the Development of Jury Charges
Regarding Social Media, 36 Am. J. Trial Advoc. 641, 642 (2013)).

       On remand, the trial court conducted the hearing, and Dr. Lewis and Juror Glenn
Mitchell testified. Dr. Lewis stated that she and Mr. Mitchell became acquainted because
he was an administrative assistant at Vanderbilt in the Department of Pathology while she
was a resident there. They worked in the same department for the three-year period ending
in 2005. Dr. Lewis described their relationship as “[n]ot close at all” and stated they were
“just acquaintances.” They did not work in the same building because she rotated all over
campus, so she only saw him once every couple of months. They did not have any social
contact, but at some point became Facebook “friends.” Dr. Lewis could not recall who
extended the friendship request. Dr. Lewis testified that she did not remember ever receiving
emails or direct Facebook communications from Mr. Mitchell prior to the trial.

       While testifying at trial, Dr. Lewis recognized Mr. Mitchell as “someone who I
thought looked vaguely familiar, but if you had asked me who he was I would not have
known.” She received the Facebook message that evening. Dr. Lewis clarified that it was
a private message which would not have been visible to anyone else. Dr. Lewis was
“alarmed” at receiving the message. Dr. Lewis testified that in her response (“I was thinking
that was you. There is a risk of a mistrial if that gets out”), she intended to convey that “this
is inappropriate behavior for you, and there may be a mistrial if someone finds out that you
are communicating with me.” After attempting to alert him that the message he had sent
could be a problem, Dr. Lewis decided to contact the trial judge and the District Attorney
General. Because her workplace did not permit her to access Facebook, she took out her
phone and transcribed the messages from the phone into the email she sent to the trial court.
She had had no direct contact with Mr. Mitchell since the trial.

       Mr. Mitchell’s testimony regarding his relationship with Dr. Lewis was substantially
the same as Dr. Lewis’s. Mr. Mitchell testified that at the time they became acquainted, he
was an administrative assistant to the chair of the pathology department while Dr. Lewis was
a resident and that he and Dr. Lewis worked in the same department for two to three years.
They saw each other “[r]andomly in the hallways, or she would stop by the office and ask for
something” and they met “not often.” Although he had contact with the residents once a
week, this contact was generally through a beeper or the telephone. Mr. Mitchell also
characterized the relationship as “acquaintances” and testified that he did not see Dr. Lewis
socially. The only personal contact between the two that Mr. Mitchell recalled was a link
that Dr. Lewis sent him toward the end of her residency allowing him to view pictures of her
children on social media. He did not recall who sent the Facebook “friend” request.



                                               -5-
        Mr. Mitchell testified that he recognized Dr. Lewis at trial and that he sent the
Facebook message to Dr. Lewis from his home prior to the beginning of deliberations. Mr.
Mitchell did not tell anyone else on the jury about the contact with Dr. Lewis or that he knew
Dr. Lewis. The other Vanderbilt employees he referenced in the message had not indicated
that they knew her, and he was not acquainted with them prior to serving on the jury with
them.2

        The trial court, after considering the testimony at the hearing, denied the defendant
a new trial based on the communication. The trial court considered the factors laid out by
State v. Adams, 405 S.W.3d 641, 654 (Tenn. 2013), and it found that the potential influence
of the message was insignificant, that Mr. Mitchell and Dr. Lewis were merely
acquaintances, that they had not had meaningful contact for five years before the 2010 trial,
that no evidence adduced at trial was discussed in the Facebook exchange, and that while the
contact was completely improper, “it was ultimately merely a greeting initiated by an old
acquaintance which most assuredly would have had no effect on the outcome of the jury
verdict.” The trial court further found that Mr. Mitchell was the only juror affected; that the
communication was a private message which occurred immediately before deliberations; and
that the “quantity and quality of the evidence in the State’s possession was particularly
great,” including the blood evidence, the defendant’s confessions, the statements the
defendant made to his girlfriend, and his knowledge of the number of shots fired.

                                           ANALYSIS

       The Sixth Amendment to the United States Constitution and article I, section 9 of the
Tennessee Constitution guarantee a right to trial by an impartial jury. U.S. Const. amend. VI;
Tenn. Const. art. I, § 9; Smith v. State, 357 S.W.3d 322, 347 (Tenn. 2011). “‘The impartial
jury guaranteed by constitutional provisions is one which is of impartial frame of mind at the
beginning of trial, is influenced only by legal and competent evidence produced during trial,
and bases its verdict upon evidence connecting defendant with the commission of the crime
charged.’” State v. Hugueley, 185 S.W.3d 356, 377-78 (Tenn. 2006) (quoting State v.
Lawson, 794 S.W.2d 363, 367 (Tenn. Crim. App. 1990)). Jurors may weigh the evidence in


       2
        We agree with the parties that Mr. Mitchell’s testimony regarding whether the verdict would
have been the same if another pathologist had testified is barred by Tennessee Rule of Evidence
606(b), which prohibits testimony regarding “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,” and allows only testimony regarding any extraneous prejudicial information
brought to the jury’s attention, any outside influence brought improperly to bear on a juror, or any
agreement to be bound by a gambling verdict.

                                                 -6-
light of their own knowledge and experience, but their verdict must nevertheless be based
on the evidence introduced at trial. Patton v. Rose, 892 S.W.2d 410, 413 (Tenn. Ct. App.
1994). Jurors must remain, both in fact and in public perception, disinterested and impartial.
State v. Smith, 418 S.W.3d 38, 42 (Tenn. 2013). In the case at bar, we identify two potential
bases for a claim that the defendant’s right to trial by an impartial jury was violated: that a
juror was exposed to extraneous prejudicial information through contact with a witness for
the State or, alternatively, that the same juror harbored personal bias due to a friendship with
a witness for the State.

        When a jury verdict is based on something other than the evidence introduced at trial,
such extraneous prejudicial information may warrant a new trial. Patton v. Rose, 892 S.W.2d
at 413-14. Extraneous information is information from a source outside the jury, and can
include communications with non-jurors about the case. Carruthers v. State, 145 S.W.3d 85,
92 (Tenn. Crim. App. 2003). A prejudicial influence may be a fact or opinion. Id. When
a juror engages in an unexplained conversation with a third party, it may be cause for a new
trial. State v. Blackwell, 664 S.W.2d 686, 689 (Tenn. 1984). Generally, an exposure to
extraneous prejudicial information raises a presumption of prejudice; unless the State is able
to rebut the presumption by explaining the conduct or demonstrating its harmlessness, the
verdict cannot stand. Walsh v. State, 166 S.W.3d 641, 647 (Tenn. 2005). The State may
demonstrate harmlessness by showing that “‘it appears beyond a reasonable doubt that the
error complained of did not contribute to the verdict obtained.’” Smith, 418 S.W.3d at 46
(quoting State v. Brown, 311 S.W.3d 422, 434 (Tenn. 2010)). However, when a jury is not
sequestered, a presumption of prejudice is not raised solely by virtue of extra-judicial
communication between a juror and a third party; to raise the presumption of prejudice, the
defendant must also show that “some extraneous prejudicial fact or opinion ‘was imported
to one or more jurors or some outside improper influence was brought to bear on one or more
jurors.’” Smith, 418 S.W.3d at 46 (quoting Blackwell, 664 S.W.2d at 689). In remanding
this case to the trial court, the Tennessee Supreme Court concluded that the email which Dr.
Lewis had sent the trial court was “sufficient to trigger the rebuttable presumption of
prejudice” and that the State was required to explain the conduct or demonstrate its
harmlessness.3 Smith, 418 S.W.3d at 48.


       3
         As noted, the remanding Court observed that the burden does not shift to the State to
demonstrate harmlessness unless there is, in addition to a showing of extra-judicial communication,
evidence that some extraneous prejudicial fact or opinion or improper influence was put before the
jury. Smith, 418 S.W.3d at 46. The Court’s conclusion that the presumption was triggered is the law
of the case. State v. Carter, 114 S.W.3d 895, 902 (Tenn. 2003) (“[W]hen an initial appeal results
in a remand to the trial court, the decision of the appellate court establishes the law of the case,
which must be followed upon remand by the trial court and by an appellate court on a second
appeal.”).

                                                -7-
       In evaluating the impact of extraneous evidence, the court should consider:

              (1) the nature and content of the information or influence,
              including whether the content was cumulative of other evidence
              adduced at trial; (2) the number of jurors exposed to the
              information or influence; (3) the manner and timing of the
              exposure to the juror(s); and (4) the weight of the evidence
              adduced at trial.

State v. Adams, 405 S.W.3d 641, 654 (Tenn. 2013). The court must use the factors to
determine “whether there exists a reasonable possibility that the extraneous prejudicial
information or improper outside influence altered the verdict.” Id.

       In this case, both witnesses testified regarding the substance of the extra-judicial
communication. Dr. Lewis testified that the email which she had sent to the trial court was
a transcription of the messages exchanged and that she had the messages displayed on her
phone so that she could accurately copy them. Mr. Mitchell agreed that the email accurately
represented the substance of the communication. As directed, the trial court inquired into the
subject of the communication, to whom it was directed, the medium, responses, and the
content, and it found that exchange was limited to the messages between Mr. Mitchell and
Dr. Lewis and that the substance of the private message was “merely a greeting.” The
evidence does not preponderate against this finding. See State v. Sammy D. Childers, No.
W2002-00006-CCA-R3-CD, 2003 WL 214444, at *3 (Tenn. Crim. App. Jan. 30, 2003)
(“Findings of fact made by the trial court are given the weight of a jury verdict.”). The trial
court also found that the factors in Adams favored the State and that there was no reasonable
possibility that the communication affected the verdict.

        In considering the first Adams factor, we conclude that no extrajudicial evidence was
imparted to any member of the jury. See Adams, 405 S.W.3d at 654 (concluding that a note
left by the alternate jurors conveying their belief that the defendant was guilty did not contain
extrajudicial evidence). Nothing in the message to Mr. Mitchell touched on the substantive
evidence at trial or issues of guilt or innocence. No fact or opinion was imparted to the juror.
See Carruthers, 145 S.W.3d at 92. The defense attempts to distinguish Adams by noting that
the Adams opinion differentiated between communication with an alternate juror and
communication with a witness. However, the cases cited in Adams for this proposition
involved communications with third parties regarding substantive issues at trial. See Adams,
405 S.W.3d at 654-55. We conclude that, due to the absence of any substantive discussion
in the communication, this factor clearly weighs in favor of the State. The fact that the juror
initiated the communication in the instant case does not affect this determination.



                                               -8-
       The second factor also favors the State, as only Mr. Mitchell had contact with the
witness. The third factor, implicating the manner and nature of the contact, is neutral, as the
contact occurred when Mr. Mitchell was at home alone but also immediately prior to
deliberations. See Adams, 405 S.W.3d at 655 (concluding that the third factor was neutral
when the foreman received a note alone in his hotel room but during deliberations).

        Finally, the evidence adduced at trial was particularly great. There was no dispute that
the defendant shot the victim. Instead, the defense’s theory was that the defendant shot her
accidentally (or in self-defense) during a struggle and again shot her accidentally while trying
to move her. Dr. Lewis’s testimony established that the victim died of gunshot wounds and
that she was shot twice. This was not a case of competing experts where jurors were
choosing between Dr. Lewis’s testimony and that of another medical expert. The only point
of Dr. Lewis’s testimony which bore on a contested issue was that the gun was fired from an
“indeterminate range” and that Dr. Lewis found no evidence that the muzzle of the pistol had
been held against the victim’s skin. The range of the shot might have had some bearing on
the jury’s determination that the murder was premeditated. However, there was more direct
evidence on the issue of premeditation in the form of the testimony of the defendant’s
girlfriend that he tried to convince her to kill the victim and that he put a gun to her head and
asked, in the days immediately preceding the homicide, if she would stand by his side. The
fact that the victim was shot twice also tends to support the conclusion that the crime was
premeditated, as does the defendant’s attempt to hide the blood-stained vehicle. See State
v. Nichols, 24 S.W.3d 297, 302 (Tenn. 2000).

        We conclude that there is no reasonable possibility that the contact with the witness
altered the verdict and that it appears beyond a reasonable doubt that any error complained
of did not contribute to the verdict obtained. Adams, 405 S.W.3d at 654; Smith, 418 S.W.3d
at 46. The witness gave the juror no actual information during the exchange, with the
exception of a warning that extra-judicial communication could lead to a mistrial.
Accordingly, the presumption of prejudice raised by the communication was sufficiently
rebutted by the State during the hearing.

        We next consider whether, outside of the improper communication, there was any sort
of prejudice, bias, or partiality within the jury that affected the defendant’s right to a fair trial.
Bias is a “‘leaning of the mind; propensity or prepossession towards an object or view, not
leaving the mind indifferent; . . . bent; [or] inclination.’” State v. Akins, 867 S.W.2d 350, 354
(Tenn. Crim. App. 1993) (quoting Durham v. State, 188 S.W.2d 555, 559 (Tenn. 1945)).
Furthermore, “[a] juror’s personal experiences directly relating to the parties may be
extraneous information.” Carruthers, 145 S.W.3d at 95. “‘An extraneous influence on a
juror is one derived from specific knowledge about or a relationship with either the parties
or their witnesses.’” Id. (quoting United States v. Herndon, 156 F.3d 629, 636 (6th Cir.

                                                 -9-
1998)).

        “[T]he constitutional guaranty of trial by an impartial jury requires the jury be free of
even a reasonable suspicion of bias and prejudice.” Hyatt v. State, 430 S.W.2d 129, 130
(Tenn. 1967). A challenge propter affectum – based on bias, prejudice, or partiality towards
one party in the litigation – may be made after the return of the verdict. Carruthers, 145
S.W.3d at 94. When a juror willfully conceals or fails to disclose information concerning a
potential bias during voir dire, a presumption of prejudice arises. Akins, 867 S.W.2d at 355.
Bias will only be presumed upon an affirmative statement of bias, willful concealment of
bias, or failure to disclose information that would call into question the juror’s bias. Smith
v. State, 357 S.W.3d 322, 348 (Tenn. 2011). The State may rebut the presumption by
showing an absence of actual partiality. Akins, 867 S.W.2d at 357.

       In this case, the attorneys did not ask the jurors if they were acquainted with Dr.
Lewis, and accordingly no presumption of prejudice on this ground was triggered by Mr.
Mitchell’s failure to volunteer the information during voir dire. However, we conclude that
Mr. Mitchell’s communication within the Facebook message does trigger a presumption of
prejudice. When Dr. Lewis warned Mr. Mitchell that there was a risk of mistrial, Mr.
Mitchell responded, “I know...I didn’t say anything about you.” This communication
indicates that although Mr. Mitchell was not asked if he knew Dr. Lewis, he believed that his
acquaintance with her was a basis for mistrial, and he nevertheless persisted in refusing to
disclose it. Willful concealment of bias is sufficient to trigger a presumption of prejudice,
Smith v. State, 357 S.W.3d 322, 348 (Tenn. 2011), and we conclude that the presumption
should apply when the facts demonstrate that the juror concealed information which he or
she believed might prove a basis for mistrial. Accordingly, the question presented is whether
the State has sufficiently rebutted the presumption of prejudice arising from the relationship
of Dr. Lewis and Mr. Mitchell.

        When a juror has a relationship with a witness or party or prior knowledge of a
witness or party, the impartiality of the jury may be compromised. Particularly where the
relationship is close or where the relationship involves a party or key witness, the
disqualification of a juror or reversal of a conviction may be warranted. In Hyatt v. State, a
juror had caused a search warrant to be issued for the residence of the defendant
approximately five years prior to trial. Hyatt, 430 S.W.2d at 129. At trial, the juror did not
recognize the defendant, who had gone by a different name at the time of the search, but he
realized who she was during deliberations. Id. at 130. The court concluded that the presence
of the juror raised a reasonable doubt regarding whether the jury had been impartial. Id.; see
also Toombs v. State, 270 S.W.2d 649, 651 (Tenn. 1954) (concluding that a juror’s failure
to reveal a close relationship with the victim’s wife required reversal); Steven James Rollins
v. State, No. E2010-01150-CCA-R3-PD, 2012 WL 3776696, at *24 (Tenn. Crim. App. Aug.

                                              -10-
31, 2012) (concluding that the State failed to rebut the presumption of prejudice that arose
when a juror did not reveal a friendship with the victim).

        However, a juror’s prior relationship with a witness or party does not automatically
lead to reversal. Hugueley, 185 S.W.3d at 379 (Tenn. 2006) (citing Bristow v. State, 219
A.2d 33, 34 (1966)). In State v. Furlough, a juror failed to disclose an acquaintance with a
detective who was a witness for the State. The court, reversing on other grounds, noted that
bias had not been shown because “[t]he testimony at the motion for new trial shows that the
two individuals involved had a casual relationship at best.” State v. Furlough, 797 S.W.2d
631, 653 (Tenn. Crim. App. 1990). Likewise, in State v. Smith, the court concluded that even
if it were proven that a plumber who was on the jury had worked for one of the defendants,
there was “simply no evidence that such employment affected his impartiality so as to affect
the outcome of this trial.” State v. George Arthur Lee Smith, No. E2006-00984-CCA-R3-
CD, 2007 WL 4117603, at *28 (Tenn. Crim. App. Nov. 19, 2007). In State v. Sparks, one
of the jurors became aware during trial that the defendant’s mother had lived in an apartment
complex which she managed, and she had a “passing acquaintance” with the defendant.
State v. Randall S. Sparks, No. M2005-02436-CCA-R3-CD, 2006 WL 2242236, at *7 (Tenn.
Crim. App. Aug. 4, 2006). The court concluded that any presumption of prejudice was
rebutted by the testimony that she did not know the defendant well or have any bias for or
against him or his family. Id.; see also Tony Carruthers v. State, No. W2006-00376-CCA-
R3-PD, 2007 WL 4355481, at *48 (Tenn. Crim. App. Dec. 12, 2007) (concluding that a
casual relationship between a juror and the defendant’s mother was not inherently
prejudicial); State v. Joseph Angel Silva, No. M2003-03063-CCA-R3-CD, 2005 WL
1252621, at *7 (Tenn. Crim. App. May 25, 2005) (concluding that presumption of prejudice
was overcome because the evidence showed that the juror’s relationship with the defendant’s
brother was that of casual acquaintance); State v. Christopher K. Knight, No.
W2001-02995-CCA-R3-CD, 2003 WL 721701, at *2 (Tenn. Crim. App. Feb. 27, 2003)
(concluding that a juror’s casual acquaintance with the victim did not establish bias and that
bias could not be presumed because relationship was not elicited during voir dire); State v.
Curtis Cecil Wayne Bolton, No. 03C01-9707-CR-00255, 1999 WL 93107, at *16 (Tenn.
Crim. App. Feb. 25, 1999) (holding that the presumption of bias which arose when a juror
did not reveal that he and the prosecutor had been roommates in college was rebutted by
evidence that their relationship had been “casual at best” since that time and by failure to
show that the relationship affected the outcome); State v. Gayle T. Parsons, Jr., No.
01C01-9607-CC-00311, 1997 WL 766465, at *5 (Tenn. Crim. App. Dec. 12, 1997) (holding
that a presumption of bias on the part of a juror who had not revealed that she had been a
victim of a similar crime was rebutted by evidence that the juror had not exposed other jurors
to extraneous information and that she had been one of three jurors who initially voted to
acquit the defendant); Bowman v. State, 598 S.W.2d 809, 812 (Tenn. Crim. App. 1980)
(concluding that a juror was not disqualified because there was no proof of bias or inherent

                                             -11-
prejudice despite an acknowledged social relationship with the Assistant District Attorney
who was ultimately called as a rebuttal witness); Clariday v. State, 552 S.W.2d 759, 772
(Tenn. Crim. App. 1976) (concluding that there was no showing of improper influence,
actual partiality, or inherent bias when counsel failed to elicit that a juror was the student of
the District Attorney General, who did not participate in the trial).

        In denying the motion for a new trial, the trial court found that the relationship
between the parties was that of “mere[] acquaintances.” We conclude the evidence does not
preponderate against this finding. Dr. Lewis and Mr. Mitchell knew each other casually from
both working in the Pathology Department at Vanderbilt University Medical Center. They
agreed that they saw each other in person rarely during the three years they worked together;
their closest contact was by beeper or telephone once a week. Prior to trial, they had not
exchanged direct messages through any social media or through email, and they had not seen
each other in five years. Dr. Lewis recognized Mr. Mitchell as an acquaintance but did not
realize who he was prior to receiving the Facebook message.

        Despite all the evidence that the two were casual acquaintances at best, the substance
of the message itself raises some doubts as to the impartiality of the juror. It was highly
improper for the juror to disregard the instructions which the trial court had given regarding
contact with witnesses. In addition, the tone of the message, which is in substance a
compliment on Dr. Lewis’s testimony, suggests partiality. Finally, we note that the
discussion of the impropriety of the message appears itself improper. While Dr. Lewis
testified that she intended to convey, in her response to Mr. Mitchell, that she found his
communication inappropriate and that it could be the basis for a mistrial, her response as
written implies that she believes that their acquaintanceship itself could be the basis of a
mistrial, and it suggests doubt regarding whether the relationship will remain undisclosed.4
Mr. Mitchell’s reply demonstrates that he is aware of the risk of mistrial and has concealed
the relationship thus far. Ultimately, Mr. Mitchell did not reveal either the relationship or
the communication, although Dr. Lewis did so at once. The Tennessee Supreme Court, in
remanding the case, observed the importance of avoiding contact on social media that could
“‘spawn public doubt about the capacity of the modern jury system to achieve justice.’”
Smith, 418 S.W.3d at 50 (quoting St. Eve & Zuckerman, 11 Duke L. & Tech. Rev. at 12).

       Nevertheless, we conclude that the State has sufficiently rebutted the presumption of
prejudice through the testimony of Mr. Mitchell and Dr. Lewis. As the trial court found, the
relationship of the parties was very distant. Facebook “friendships” frequently exist between

       4
         Dr. Lewis wrote that there was a risk of mistrial “if that gets out.” (Emphasis added.) Of
course, Dr. Lewis did not conceal the communication or relationship but promptly brought them to
the attention of the court the following day.

                                               -12-
those who are indifferent to one another. While the tone of the exchange raises the specter
of prejudice, Mr. Mitchell’s unwarranted exuberance on discovering an old acquaintance
does not demonstrate actual partiality, and all testimony presented at the hearing served to
show that the juror did not harbor bias.5 Furthermore, Mr. Mitchell’s comment to Dr. Lewis
was not based on his acquaintance with her but was rather his evaluation of the testimony
presented at trial. A juror is, of course, free to evaluate the testimony of a witness, although
communicating such an appraisal to the witness herself during trial is improper. As noted
above, the proof in the case was particularly strong, and the testimony of the witness was
mainly concerning uncontested issues. All the evidence established that the defendant shot
the victim twice, and the defendant’s theory at trial was that shootings were both accidental.
Abundant proof, however, including the number of shots, the attempt to conscript Ms.
Crawford into participating in the killing, and the attempt to hide evidence, supported the
finding of premeditation. See Nichols, 24 S.W.3d at 302. We conclude that the State
adequately rebutted the presumption of prejudice and that the defendant has not established
that juror bias deprived him of the right to a fair trial.

                                        CONCLUSION

       Based on the foregoing reasoning, we affirm the judgment of the trial court.




                                                      _________________________________
                                                       JOHN EVERETT WILLIAMS, JUDGE




       5
        Relying on Dimas-Martinez v. State, 385 S.W.3d 238, (Ark. 2011), the defendant urges that
the act of disregarding the trial court’s orders by communicating with the witness is in itself
demonstrative of bias. However, we find that case, in which the juror posted multiple public tweets
even after being individually questioned and admonished by the court, readily distinguishable.

                                               -13-
