           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                  Assigned on Briefs October 28, 2003

                        STATE OF TENNESSEE v. JAY CHAMBERS

                            Appeal from the Criminal Court for Scott County
                                 No. 7547    E. Shayne Sexton, Judge



                                         No. E2002-01308-CCA-R3-CD
                                                March 25, 2004

The defendant, Jay Chambers, was convicted of one count of rape. The trial court imposed a Range
I sentence of ten years. In this appeal, the defendant asserts that a former sheriff's deputy should not
have been permitted to sit as a juror; that the trial court erred by permitting members of the jury to
separate during a break; and that he was denied the effective assistance of counsel. Because the
defendant's motion for new trial was untimely and the issues, even if meritorious, would not warrant
a dismissal of the charge, the interests of justice do not require waiver of the timely filing of the
notice of appeal. Accordingly, the appeal is dismissed.

                                    Tenn. R. App. P. 3; Appeal Dismissed

GARY R. WADE, P.J., delivered the opinion of the court, in which ALAN E. GLENN , J., joined.
JOSEPH M. TIPTON , J., filed a concurring opinion.

John A. Beaty, Huntsville, Tennessee (on appeal), and Max Huff, Oneida, Tennessee (at trial), for
the appellant, Jay Chambers.

Paul G. Summers, Attorney General & Reporter; Renee W. Turner, Assistant Attorney General; and
Lori Jones and John W. Galloway, Assistant District Attorneys General, for the appellee, State of
Tennessee.

                                                       OPINION

        In December of 1998, the victim, fifteen-year-old A.H.,1 visited the residence of her friends,
Tammy and Robin Chambers, intending to spend the night. After changing into her pajamas, the
victim, who had joined her friends on the porch to listen to music, began to dance. The defendant,
who is the father of Tammy and Robin Chambers, had been drinking and asked to see the victim's
breasts. The victim refused and later, as the victim lay on a trampoline with her friends "looking at
the stars," the defendant rubbed her stomach. The victim pushed his hand away and demanded that

       1
           It is the policy of this court to withhold the identity of minor victims of sex crimes.
he stop. After the defendant returned to the interior of the house, Tammy and Robin warned the
victim not to allow the defendant to touch her.

         Later in the evening, the victim asked for beer and the defendant accommodated her request.
According to the victim, she shared three beers with Tammy and Robin, drank two shots of tequila,
and then smoked marijuana with the defendant, claiming that she thought it was a cigarette. At trial,
the victim claimed that the defendant asked her to perform oral sex and she refused. The victim
testified that she did not leave the residence following this encounter because she "figured [the
defendant] was just drunk and would not try [any]thing." After going to sleep on a cot in the living
room, the victim awoke upon experiencing a pain between her thighs and discovered that the
defendant had penetrated her vagina. Her shirt and bra were pulled away and her pants and
underwear were around her left ankle. The victim directed the defendant to stop but he had pinned
her to the cot with his knee. According to the victim, the defendant told her not to worry because
he was using a condom. When the defendant finished, he went to bed. The victim woke her friends
and claimed that she had been raped. Because there was no telephone at the Chambers' residence,
the victim went to a neighbor's house to call 911. After making a statement to police, the victim was
taken to the emergency room and examined. The victim testified that later, Tammy informed her
that Robin claimed that she was awake during the sexual assault and "heard everything."

        Scott County Deputy Donnie Phillips, who responded to the call, described the victim as
"crying, nervous and scared." After taking the victim's statement, Deputy Phillips arrested the
defendant. The defendant, who smelled of alcohol and had slurred speech, denied having raped the
victim.

        At trial, Dr. Janet Wolfer, who examined the victim in the emergency room, testified that the
victim complained of pain in her genital area, her upper abdomen, and her chest. In a pelvic
examination, Dr. Wolfer found that the victim's vagina was swollen, red, and inflamed. Dr. Wolfer
discovered a laceration to the vagina, which she described as "consistent with a forceful sexual
episode." It was her opinion that the injuries could not have been caused by "normal non-violent
sexual intercourse." A toxicology examination of the victim was negative for alcohol and marijuana.

        Shay Silcox and Justin Gilreath, friends of the victim, testified as defense witnesses that the
victim had given conflicting accounts of the offense. Ms. Silcox claimed that the victim denied
being raped and Gilreath testified that the victim had informed him that the rape did not occur inside
the defendant's residence.

        The defendant's daughters, Tammy and Robin, also testified for the defense. Both denied
either drinking or smoking marijuana on the night of the offense. According to Robin, the victim
was angry with the defendant because he refused to give her any beer. Robin insisted that she was
sleeping less than a foot from the victim and would have heard any assault. Similarly, Tammy
contended that she slept only inches from the victim's head and heard nothing until the victim asked
for the flashlight so that she could find her way to the outhouse. Tammy recalled that when the
police arrived, she awakened her father, who was passed out on his bed, fully clothed.


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        On November 17, 1999, the defendant was convicted of rape. Five months later, the trial
court imposed a sentence of ten years' incarceration. Approximately two weeks later, the defendant
filed a notice of appeal. There was no motion for new trial. The defendant voluntarily dismissed
his appeal in June of 2000. In November of 2000, he filed a pro se motion for new trial.
Approximately sixteen months later, the defendant, through counsel, filed a second motion for new
trial which was amended on the next day. A hearing was held on the motion for new trial on the
following day. The defendant filed a second notice of appeal on April 29, 2002, and, in August of
the same year, the trial court entered an order denying the motion for new trial.

                                                     I
        Initially, the state argues that the motion for new trial was not timely filed. Tennessee Rule
of Criminal Procedure 33(b) provides that a motion for new trial must be filed "within thirty days
of the date the order of sentence is entered." Tenn. R. Crim. P. 33(b). This provision is mandatory
and may not be extended by the trial court. Tenn. R. Crim. P. 45(b); State v. Martin, 940 S.W.2d
567, 569 (Tenn. 1997). In consequence, a trial court has no jurisdiction to hear or determine the
merits of an untimely motion for new trial. Martin, 940 S.W.2d at 569 (citing State v. Dodson, 780
S.W.2d 778, 780 (Tenn. Crim. App. 1989); State v. Givhan, 616 S.W.2d 612, 613 (Tenn. Crim. App.
1981); Massey v. State, 592 S.W.2d 333, 334-35 (Tenn. Crim. App. 1979)). A motion for new trial
which is not timely filed is a nullity. State v. Blunkall, 731 S.W.2d 72, 74 (Tenn. Crim. App. 1987)
(citing State v. Lane, 689 S.W.2d 202 (Tenn. Crim. App. 1984); State v. Williams, 675 S.W.2d 499
(Tenn. Crim. App. 1984)). The trial judge's erroneous consideration of a motion for new trial not
timely filed will not validate the motion. Martin, 940 S.W.2d at 569.

         Because the untimely motion for new trial was a nullity, it cannot toll the thirty-day period
for filing a notice of appeal. See State v. Davis, 748 S.W.2d 206, 207 (Tenn. Crim. App. 1987);
State v. Timothy Wayne Henderson, No. 01C01-9801-CC-00001 (Tenn. Crim. App., at Nashville,
Oct. 21, 1998). In consequence, the notice of appeal filed by the defendant in April of 2002, over
two years after the imposition of sentence, is untimely. The timely filing of a notice of appeal is not,
however, a prerequisite to the jurisdiction of this court. This court may waive the requirement in the
interests of justice. Tenn. R. App. P. 4(a). Thus, the question is whether the interests of justice in
these circumstances require waiver of the timely filing of the notice of appeal.

        It is well-established that an appellate court may not consider the issues raised in an untimely
motion for new trial unless they would result in dismissal of the case. See Tenn. R. App. P. 3(e)
(stating that "in all cases tried by a jury, no issue presented for review shall be predicated upon error
in the admission or exclusion of evidence, jury instructions granted or refused, . . . or other ground
upon which a new trial is sought, unless the same was specifically stated in a motion for a new trial;
otherwise such issues will be treated as waived"); Martin, 940 S.W.2d at 569 (holding that a
defendant relinquishes the right to argue on appeal any issues that should have been presented in a
motion for new trial); State v. Dodson, 780 S.W.2d 778, 780 (Tenn. Crim. App. 1989). Here, the
defendant has raised three issues on appeal. Two address the composition and activities of the jury
and one addresses the effectiveness of his trial counsel. These issues, if decided in the defendant's
favor, would warrant a new trial but would not result in dismissal of the case. Thus, the issues could


                                                  -3-
not be entertained on appeal due to the failure to file a timely motion for new trial. Tenn. R. App.
P. 3(e); State v. Williams, 675 S.W.2d 499 (Tenn. Crim. App. 1984). Because the defendant has
failed to raise any issue that would warrant dismissal, it is our view that the interests of justice do
not require a waiver of the timely filing of the notice of appeal. Accordingly, the appeal is
dismissed.

                                                   II
       Furthermore, the defendant would not have been entitled to relief on the merits of the issues.
The defendant's first complaint of error is that he was denied the right to trial by a fair and impartial
jury because juror David Terry, while employed as a deputy with the Scott County Sheriff's
Department, had previously arrested him for a misdemeanor offense.

        Tennessee Rule of Evidence 606(b), which authorizes only limited inquiry into the validity
of a verdict through the questioning of jurors, provides that "a juror may testify on the question of
whether extraneous, prejudicial information was improperly brought to the jury's attention" or
"whether any outside influence was improperly brought to bear upon any juror . . . ." Tenn. R. Evid.
606(b). The term "extraneous information" may include a juror's personal knowledge of the
defendant's prior criminal record or arrest, see Neil P. Cohen, et al., Tennessee Law of Evidence §
606.2 (3rd ed. 1995), and such information is deemed prejudicial if it has an influence on the verdict
of the jury, see Patton v. Rose, 892 S.W.2d 410 (Tenn. Ct. App. 1994). While the defendant is
entitled to a verdict untainted by extraneous, prejudicial information, the defendant bears the burden
of establishing jury misconduct. State v. Blackwell, 664 S.W.2d 686 (Tenn. 1984). In this case,
while the defendant asserts that a juror had prejudicial, personal knowledge of his prior criminal
record, the defendant does not assert that the juror shared this information with the other members
of the jury. Thus, the question is one of juror disqualification.

        Generally, juror disqualifications are based upon one of two theories: (1) propter defectum
("On account of or for some defect." Black's Law Dictionary 1385 (Rev. 4th Ed. 1968)) or (2)
propter affectum ("For or on account of some affection or prejudice." Id.). Partin v. Henderson, 686
S.W.2d 587 (Tenn. Ct. App. 1984). Objections based on general disqualifications, such as familial
relationship, fall within the propter defectum class and, accordingly, must be challenged prior to the
verdict. Id. at 589. In contrast, disqualifications based upon propter affectum exist due to some bias
or partiality toward one party in the litigation and may be made after the verdict. Toombs v. State,
197 Tenn. 229, 270 S.W.2d 649, 651 (1954); Durham v. State, 182 Tenn. 577, 188 S.W.2d 555, 557
(1945); Partin, 686 S.W.2d at 589. Even in cases of propter affectum, challenges after the verdict
are not proper unless the "'particular disqualification of a juror was unknown to the defendant and
his attorney at the time of the jury's selection.'" Durham, 182 Tenn. at 582, 188 S.W.2d at 557
(quoting Monday v. State, 160 Tenn. 258, 23 S.W.2d 656, 658 (1930)); see also State v. Akins, 867
S.W.2d 350, 355 (Tenn. Crim. App. 1993) ("Thus, when a juror conceals or misrepresents
information tending to indicate a lack of impartiality, a challenge may be made as here in a motion
for new trial."). Because the defendant complains of bias or partiality in favor of the state, his claim
is one of propter affectum. See State v. Furlough, 797 S.W.2d 631, 652 (Tenn. Crim. App. 1990).



                                                  -4-
        Here, Juror Terry's affidavit establishes that he was a deputy from 1986 until 1992. At the
time of the trial, Juror Terry had been out of law enforcement for some seven years. While
acknowledging that he had arrested the defendant for a misdemeanor offense, Juror Terry stated that
he did not remember the charge or whether the arrest led to a conviction. Juror Terry also
acknowledged in his affidavit that it was possible that he had been involved in an investigation in
which the defendant was a suspect but that he had no recollection of the subject matter. At the
hearing on the motion for new trial, the defendant testified that Juror Terry had cited him for driving
on a revoked license and had questioned him about a stolen van. The defendant contended that he
informed trial counsel about his experience with Juror Terry but that trial counsel chose not to
remove him from the jury panel.

        The record indicates that Juror Terry responded affirmatively when trial counsel asked if any
of the prospective jurors knew the defendant. No further questions were asked. There is no
indication that Juror Terry intentionally concealed the nature of his prior relationship with the
defendant. In consequence, the post-verdict challenge to Juror Terry's qualification would not have
warranted relief. See Durham, 182 Tenn. at 582, 188 S.W.2d at 557; Akins, 867 S.W.2d at 355.
Further, there is no indication that Juror Terry's participation in the verdict was influenced by his
prior knowledge of the defendant's criminal history. Thus, the defendant is not entitled to relief on
this ground.

         Next, the defendant contends that he was denied the right to a trial by a fair and impartial jury
because the jury was permitted to separate after they had been impaneled and sworn. Citing
Gonzales v. State, 593 S.W.2d 288 (1990), he argues that prejudice is presumed, and that the burden
is on the state to show that no prejudice occurred. The state submits that the defendant is not entitled
to relief because he has not shown that he was prejudiced by the separation.

       The rulings in Gonzales and its progeny are based upon Tennessee Code Annotated section
40-18-116:

                In all criminal prosecutions except those in which a death sentence may be
        rendered, the judge of the criminal court may, in his discretion, with the consent of
        the defendant, and with the consent of the district attorney general, permit the jurors
        to separate at times when they are not engaged upon the actual trial or deliberation
        of the case.

Tenn. Code Ann. § 40-18-116 (1990). In 1995, however, our legislature amended section 40-18-116
to read as follows:

                In all criminal prosecutions, except those in which a death sentence may be
        rendered, jurors shall only be sequestered on the judge's motion or on the motion of
        the counsel for the defendant or the district attorney general, which shall prohibit the
        jurors from separating at times when they are not engaged upon the actual trial or



                                                   -5-
       deliberation of the case. The party making the motion to sequester shall be unknown
       to the jury.

Tenn. Code Ann. § 40-18-116 (1997) (emphasis added). This court has held that the amendment
"does not per se alter a defendant's right to have the jury sequestered, [but] clearly rearranges the
burden of putting forward an objection." State v. Johnny Owens and Sarah Owens, No. W2001-
01397-CCA-R3-CD (Tenn. Crim. App., at Jackson, Nov. 8, 2002); see Kenneth MacArthur Johnson
v. State, No. E2001-00068-CCA-R3-PC (Tenn. Crim. App., at Knoxville, Dec. 18, 2001) (1995
statute "reflects a right to a sequestered jury," but right may be "waived by the defendant who fails
to move for sequestration").

        In this case, neither the state nor the defense made a motion to sequester the jury. The trial
court chose not to sequester the jury. Our supreme court has held that when the jury is not
sequestered, the defendant has the burden of showing something more than mere interactions
between the jury and third persons. Blackwell, 664 S.W.2d at 689. The defendant must instead
establish "that as the result of a juror's contact with a third person some extraneous prejudicial
information, fact or opinion was imported to one or more jurors or some outside improper influence
was brought to bear on one or more jurors." Id. Here, the defendant has failed to make a threshold
showing that any of the jurors interacted with a third person. In consequence, he would not be
entitled to relief.

        As his final issue, the defendant contends that his trial counsel was ineffective for failing to
discover Juror Terry's knowledge of his criminal history, for failing to adequately investigate the
case, and for failing to devote the necessary time and effort to the case. The state submits that trial
counsel's performance was not deficient.

        Our supreme court has stated that claims of ineffective assistance of counsel may be raised
on direct appeal, and this court must apply the same standard used for such claims in post-conviction
proceedings. See State v. Burns, 6 S.W.3d 453, 461 n.5 (Tenn. 1999). When a defendant seeks
relief on the basis of ineffective assistance of counsel, he must first establish that the services
rendered or the advice given was below "the range of competence demanded of attorneys in criminal
cases." Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Second, he must show that the
deficiencies "actually had an adverse effect on the defense." Strickland v. Washington, 466 U.S.
668, 693 (1984). Should the defendant fail to establish either factor, he is not entitled to relief. Our
supreme court described the standard of review as follows:

               Because a [defendant] must establish both prongs of the test, a failure to
       prove either deficiency or prejudice provides a sufficient basis to deny relief on the
       ineffective assistance claim. Indeed, a court need not address the components in any
       particular order or even address both if the defendant makes an insufficient showing
       of one component.

Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).


                                                  -6-
        On claims of ineffective assistance of counsel, the defendant is not entitled to the benefit of
hindsight, may not second-guess a reasonably based trial strategy, and cannot criticize a sound, but
unsuccessful, tactical decision made during the course of the proceedings. Adkins v. State, 911
S.W.2d 334, 347 (Tenn. Crim. App. 1994). Such deference to the tactical decisions of counsel,
however, applies only if the choices are made after adequate preparation for the case. Cooper v.
State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). The defendant bears the burden of proving
his claims by clear and convincing evidence. See Burns, 6 S.W.3d at 461 n.5; State v. William
Makransky, No. E2000-00048-CCA-R3-CD (Tenn. Crim. App., at Knoxville, June 28, 2001); see
also Tenn. Code Ann. § 40-30-210(f) (1997).

        On appeal, the findings of fact made by the trial court are conclusive and will not be
disturbed unless the evidence contained in the record preponderates against them. Brooks v. State,
756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The burden is on the defendant to show that the
evidence preponderated against those findings. Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim.
App. 1978). The credibility of the witnesses and the weight and value to be afforded their testimony
are questions to be resolved by the trial court. Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990);
Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997). When reviewing the application of
law to those factual findings, however, our review is de novo, and the trial court's conclusions of law
are given no presumption of correctness. Fields v. State, 40 S.W.3d 450, 457-58 (Tenn. 2001); see
also State v. England, 19 S.W.3d 762, 766 (Tenn. 2000).

         The defendant first claims that trial counsel was ineffective for failing to discover that Juror
Terry, while working as a deputy sheriff, had arrested him on a prior charge. The defendant testified
at the hearing on the motion for new trial that he informed trial counsel of the nature of his
acquaintance with Juror Terry. Trial counsel testified that he knew that Juror Terry had been a
deputy under a prior sheriff and did not have a favorable opinion of the current sheriff, having been
critical of the investigative abilities of the department. Trial counsel chose to not to challenge the
juror because he believed that his participation would benefit the defendant. In our view, this
qualifies as a tactical decision and would not be a basis for relief.

         The defendant's claims that trial counsel was ineffective for failing to adequately investigate
and for failing to devote sufficient time and effort to the case are essentially based upon the failure
to interview certain witnesses. The defendant argues that trial counsel should have interviewed the
physician who treated the victim in the emergency room and two other persons who were at the
Chambers residence shortly before the rape. None of these witnesses, however, were produced as
witnesses at the hearing on the motion for new trial. Trial counsel explained at the hearing that he
had read the medical report prior to the trial and did not feel that it was necessary to personally
interview the physician. Further, trial counsel had learned from the defendant and his children that
the other potential witnesses had left the Chambers residence well before the rape occurred and did
not have any pertinent information. The defendant claimed only that the witnesses would have
testified that the victim had been drinking on the evening of the offense. In our view, that would not
have been enough to prove that trial counsel's performance was deficient.



                                                  -7-
         In summary, because the defendant's untimely motion for new trial was a nullity, it did not
toll the thirty-day period for filing a notice of appeal. Further, because the defendant has not raised
any issue that would require dismissal, the interests of justice do not require the waiver of the timely
filing of the notice of appeal. Accordingly, the appeal is dismissed. Finally, even if the defendant
had been entitled to a review on the merits, the questions presented for review would not have
warranted a new trial.



                                                        ___________________________________
                                                        GARY R. WADE, PRESIDING JUDGE




                                                  -8-
