        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT JACKSON

                          MAY 1998 SESSION        FILED
                                                 September 21, 1998

                                                  Cecil Crowson, Jr.
                                                  Appellate C ourt Clerk
STATE OF TENNESSEE,       )
                          ) C.C.A. No. 02C01-9801-CC-00009
    Appellee,             )
                          ) Henry County
V.                        )
                          ) Honorable C. Creed McGinley, Judge
                          )
ROBERT EMMET DUNLAP, JR., ) (Sale of Cocaine - 3 counts)
                          )
    Appellant.            )




FOR THE APPELLANT:              FOR THE APPELLEE:

Matthew M. Maddox               John Knox Walkup
Maddox, Maddox & Maddox         Attorney General & Reporter
19695 East Main Street
P.O. Box 430                    Elizabeth T. Ryan
Huntingdon, TN 38344            Assistant Attorney General
                                425 Fifth Avenue North
                                Nashville, TN 37243-0493

                                Robert “Gus” Radford
                                District Attorney General

                                John W. Overton, Jr.
                                Assistant District Attorney General
                                P.O. Box 686
                                Huntingdon, TN 38344



OPINION FILED: ___________________

AFFIRMED IN PART; REMANDED

PAUL G. SUMMERS,
Judge




                            OPINION
      The appellant, Robert Emmet Dunlap, Jr., was convicted by a jury of three

counts of the sale of cocaine in the Henry County Circuit Court. The court

imposed concurrent sentences of ten years for each conviction. The court

denied the appellant’s motion for a new trial and this appeal followed. The

appellant presents the following issues for our review:


      I. Whether the trial court erred in denying his motion to
      subpoena jurors to determine if the jury received and relied
      upon extrajudicial information in reaching their verdict.

      II. Whether the trial court erred in refusing to order the state
      to provide him with the criminal record of the confidential
      informant who testified against him.

      III. Whether the trial court erred in denying his motion for a
      judgment of acquittal on count five of the indictment.


      The appellant sold cocaine to a confidential informant on May 8, 16, and

25, 1995. Gary Azbill, a special agent with the Tennessee Bureau of

Investigation (TBI), testified that a confidential informant, Dan Grooms, set up

the purchases of cocaine from the appellant. Agent Azbill and Grooms drove to

the appellant’s house on the three occasions. Agent Azbill searched Grooms

and gave him money to buy the cocaine. Agent Azbill gave Grooms a

microcassette recorder to record the transactions. Agent Azbill waited in the car

while Grooms purchased the cocaine. A recording of each transaction was

introduced into evidence. The appellant’s voice was identified on the tape.

Forensic scientists with the TBI lab determined that the substance purchased

from the appellant was cocaine in the amount of 3.3 grams, 3.3 grams, and 6.7

grams, respectively.



       Grooms testified that he worked as a confidential informant because he

was facing life in prison if he did not cooperate with the TBI. Grooms had

previously sold a quarter of a pound of marijuana to an undercover agent. He

has a prior criminal record. Grooms was paid $100 for each buy.




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       The appellant argues that the court erred in denying his motion to

subpoena jurors to determine whether extrajudicial information was introduced to

the jury and affected the jury’s deliberations. In support of the motion, the

appellant attached the affidavit of his counsel’s secretary, Jennifer McMackin.

Ms. McMackin stated that a juror, “Mrs. Riley,” told her that another of the jurors

mentioned during jury deliberations that the appellant had a prior drug case for

which he was not punished. Mrs. Riley refused to submit an affidavit, saying that

she could not remember whether the appellant’s prior drug case was mentioned

during or after jury deliberations. Ms. McMackin further stated that she

contacted another juror, Jeffrey Allen, who told her that he remembered a

discussion about the appellant’s prior drug case, but said that it did not affect his

decision to convict the appellant. Ms. McMackin stated that Mr. Allen refused to

sign an affidavit unless all the jurors were called into court.



       The trial court was clearly concerned about the appellant’s right to a fair

trial as well as preserving the verdict of the jury from speculative allegations of

misconduct. The trial court denied the appellant’s motion to subpoena the jurors,

stating that an appellant must offer an affidavit of a juror showing juror

misconduct before the court will issue a subpoena for any jury member. Many

reported and unreported Tennessee cases address the issue of whether the

information in a juror’s affidavit or testimony is admissible or sufficient to merit a

new trial. See, e.g., State v. Coker, 746 S.W.2d 167 (Tenn. 1987); State V.

Blackwell, 664 S.W.2d 686 (Tenn. 1984); State v. Dozier, No.

02C01-9610-CC-00357 (Tenn. Crim. App. filed at Jackson, Nov. 4, 1997); Patton

v. Rose, 892 S.W.2d 410 (Tenn. Ct. App. 1994); Caldararo v. Vanderbilt Univ.,

794 S.W.2d 738 (Tenn. Ct. App. 1990); State v. Hailey, 658 S.W.2d 547 (Tenn.

Crim. App. 1983). See generally Neil P. Cohen et al., Tennessee Law of

Evidence § 606.1-.2, at 328-36 (3d ed. 1995). We were unable to find any

Tennessee decisions addressing what evidence must be presented to merit




                                          -3-
questioning jurors about narrowly drawn issues of jury misconduct, as

distinquished from evidence warranting a new trial.



       We begin our analysis by reviewing what evidence is admissible to

impeach a jury verdict at a motion for new trial. Tennessee Rule of Evidence

606(b) provides:



       Inquiry Into Validity of Verdict or Indictment. 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 emotion 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 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.

Id. (emphasis added).



       Extraneous information includes a juror’s personal knowledge of an

accused’s prior criminal record or arrest. See Cohen, supra, § 606.2 at 333.d.

1995). The information would be prejudicial if it influenced the jury’s verdict. See

Patton v. Rose, 892 S.W.2d 410 (Tenn. Ct. App. 1994). Of course, a juror’s

personal knowledge would have to be divulged to influence the jury’s verdict.

The prior conviction or arrest would be personal information directly involved in

the prosecution of the accused, but not in evidence. See Caldararo v. Vanderbilt

Univ., 794 S.W.2d 738, 744 (Tenn. Ct. App. 1990).



       Having determined that a juror’s revelation of an accused’s prior arrest or

conviction not in evidence to other members of the jury is extraneous information

about which jurors may testify, we must next determine whether Ms. McMackin’s

affidavit is sufficient evidence to verify further investigation by the trial court. Ms.



                                           -4-
McMackin’s statements about what the two jurors told her is hearsay and would

be insufficient evidence to justify a new trial. The nature of the admissible

evidence, that the appellant was arrested in a prior drug case and not punished,

is potentially substantially prejudicial. Two jurors admitted that the information

was discussed, albeit one juror equivocally stated so. Neither juror would give

the appellant an affidavit. One juror refused to give an affidavit unless the entire

jury was questioned. Requiring a defense attorney to present a juror’s affidavit

of prejudicial misconduct to have the trial court question jurors about the

misconduct places the defense in a difficult situation. Jurors may admit that they

received extraneous information but refuse to give an affidavit for fear of the

reaction of the other jurors or the community. Indeed, if the defense could

produce an affidavit, then it may have simultaneously proven its right to a new

trial.



         We are mindful of the discretion of the trial court and the inviolate nature

of jury verdicts. However, where as here, the defense has come forward with

evidence of potentially prejudicial extraneous information, the trial judge should

investigate the matter further to ensure that the defendant has received a fair

trial.


         A trial judge is generally in the best position to evaluate the
         critical question of whether the jury’s exposure to extra-
         record evidence prejudiced the defendant. Thus, when
         there is an issue with regard to the propriety of a jury’s
         conduct, it is the responsibility of the trial judge to insure that
         the jury’s verdict is in no way tainted by improper outside
         influences; as a rule, in every case where the trial court
         learns that a member or members of the jury may have
         received extra-record information with a potential for
         substantial prejudice, the trial court must determine whether
         the members of the jury have been prejudiced, and, having
         become aware that extrinsic influence or information may
         have been brought to bear upon the jury, must investigate
         the alleged wrongdoing. The trial court has wide discretion
         in deciding how to pursue an inquiry into the nature and
         effect of extra-record information that comes to a juror. The
         judge’s broad discretion in this regard extends to the
         decision whether to summon and investigate jurors due to
         alleged exposure to prejudicial information or improper
         outside influence. Potentially suspicious circumstances do



                                         -5-
       not justify such an inquiry. Something more than unverified
       conjecture must be shown.

75B Am. Jur. 2d Trial § 1640 (1992).



       This case does not authorize fishing exhibitions into jury deliberations.

We are aware that Ms. McMackin’s affidavit contains little evidence of the

prejudice. We are also aware that the evidence of guilt in this case is

substantial. We are not, however, willing to endorse a rule that requires a

defendant to produce the affidavit of a juror just to have the court inquire into the

verdict where, as here, the alleged information is extraneous and the fact that it

was revealed during deliberations was stated by two jurors to the affiant.

Therefore, we remand this case to the trial judge to investigate the following

questions in the manner that the judge sees fit: (1) did the jury receive

information from a juror about the appellant’s past criminal history, and (2) did

the information influence a juror’s verdict. If the answer to both of these

questions is in the affirmative, then the trial judge shall order a new trial.



       The appellant argues that the trial court erred by failing to order the state

to disclose the prior criminal record of confidential informant Grooms. The

appellant admits that the state is not required to provide a defendant with the

criminal records of the state’s witnesses. See State v. King, 718 S.W.2d 241

(Tenn. 1986); State v. Workman, 667 S.W.2d 44 (Tenn. 1984). The appellant

contends that the state’s failure to provide Grooms’ criminal record violates his

right to due process under Brady v. Maryland, 373 U.S. 83 (1963).



       A panel of this Court recently addressed this issue in State v. Copeland,

No. 01C01-9703-CR-00085 (Tenn. Crim. App. filed at Nashville, Apr. 3, 1998).

In Copeland, the appellants contended that the state’s failure to inform them of a

confidential informant’s record violated their rights to due process under Brady,

meriting a new trial. The Court stated:




                                          -6-
       In Brady, the United States Supreme Court held that
       “suppression by the prosecution of evidence favorable to an
       accused upon request violates due process where the
       evidence is material either to guilt or to punishment,
       irrespective of the good faith or bad faith of the prosecution.”
       373 U.S. at 87. Evidence favorable to an accused includes
       that which may be used to impeach the prosecution's
       witnesses. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763,
       31 L.Ed.2d 104 (1972). However, “The evidence is material
       only if there is a reasonable probability that, had the evidence
       been disclosed to the defense, the result of the proceeding
       would have been different. A 'reasonable probability' is a
       probability sufficient to undermine confidence in the outcome.”
       United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87
       L.Ed.2d 481 (1985).

Copeland, No. 01C01-9703-CR-00085 (Tenn. Crim. App. filed at Nashville,

Apr. 3, 1998).



       The Court in Copeland found no merit to the appellant’s issue because

the confidential informant’s criminal record was not material to the outcome of

the trial. The Court noted that the defense established the confidential informant

as a paid “snitch.” The Court also noted that the testimony of the officer who

accompanied the informant on the drug buy was the same as the informant’s

testimony. In other words, the appellants failed to establish a reasonable

probability that the results of the trial would have been different if they had been

provided the criminal record of the informant.



       Likewise, in the case at bar, Grooms’ criminal record was not material to

the outcome of the case. On cross-examination, Grooms testified that he had a

prior felony conviction for aggravated assault. When asked whether he had any

other felony convictions, Grooms replied, “You would have to check on my

records. I just don’t know.” Grooms clearly admitted that he had other

convictions. Grooms admitted that he was a paid “snitch.” Grooms admitted that

he was cooperating with the TBI to avoid life in prison. In addition to Grooms’

testimony, the microcassette tapes and the testimony of Agent Azbill are

evidence of the transactions. We do not believe that the results of the




                                         -7-
appellant’s trial would have been different had he provided the complete criminal

record of Grooms to the appellant. This issue is without merit.



       The appellant states in his last issue that the trial court erred in denying

his motion for a judgment of acquittal on count three of the indictment. Count

three of the indictment charges the appellant with selling cocaine on May 16,

1995. The appellant’s “argument” discusses count five of the indictment which

charges the appellant with selling cocaine on May 25, 1995. The evidence is

sufficient to support the convictions for both counts. We will address the

appellant’s “argument.” The appellant argues that there is no evidence that

Grooms purchased cocaine from the appellant on May 25th, other than “a poor

quality audio tape which does not indicate on its face” that Grooms purchased

cocaine from the appellant.



        When the trial court is presented with a motion for judgment of acquittal,

the only concern is the legal sufficiency, as opposed to the weight, of the

evidence. See State v. Campbell, 904 S.W.2d 608 (Tenn. Crim. App. 1995). To

determine whether the evidence is insufficient to sustain the conviction, the trial

court must consider “the evidence introduced by both parties, disregard any

evidence introduced by the accused that conflicts with the evidence adduced by

the State, and afford the State the strongest legitimate view of the evidence,

including all reasonable inferences which may be drawn from the evidence.” Id.

(citing State v. Blanton, 926 S.W.2d 953, 957-58 (Tenn. Crim. App. 1996); State

v. Hall, 656 S.W.2d 60, 61 (Tenn. Crim. App. 1983)).



       The evidence is sufficient to support the appellant’s conviction for the sale

of cocaine to Grooms on May 25, 1995. Agent Azbill testified that he and

Grooms went to the appellant’s residence to purchase cocaine on May 25th.

Agent Azbill testified that he searched Grooms and gave him a microcassette

recorder and money to buy the cocaine. Grooms returned with two “baggies” of



                                         -8-
cocaine and the recorder. The tape of the transaction was introduced into

evidence. Agent Azbill identified the voices on the tape as those of the

appellant, the appellant’s wife, Grooms, and two unidentified voices of persons

who left before the transaction. The substance purchased was identified as

cocaine. Although the transaction is unclear on the tape, Agent Azbill’s

testimony, along with that of Grooms, is sufficient evidence to support the

conviction. Grooms testified that on one occasion he purchased a quarter of an

ounce of cocaine which was packaged in two plastic baggies from the appellant.

Grooms testified that two people were leaving the appellant’s house on the day

that he purchased the two “baggies” of cocaine from the appellant. This issue is

without merit.



       This case is remanded to the trial court for proceedings consistent with

this opinion. Aside from the issue on remand, the judgment of the trial court is

affirmed in all respects.




                                              _____________________________
                                              PAUL G. SUMMERS, Judge


CONCUR:




_________________________
JOHN H. PEAY, Judge




_________________________


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THOMAS T. W OODALL, Judge




                            -10-
