              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT JACKSON

                                 JULY 1999 SESSION
                                                              FILED
                                                                October 6, 1999

                                                             Cecil Crowson, Jr.
STATE OF TENNESSEE,                  )
                                     )                      Appellate Court Clerk
              Appellee,              )      No. 02C01-9812-CC-00365
                                     )
                                     )      Henderson County
v.                                   )
                                     )      Hon. Whit Lafon, Judge
                                     )
RUTH STANFORD,                       )      (Sale of Schedule III Drug,
                                     )      Delivery of Schedule III Drug)
              Appellant.             )



                                 CONCURRING OPINION



              I concur in the majority opinion, except I view the juror issue somewhat

differently. First, I believe that the juror’s proffered testimony relates to a fact not in

evidence, i.e., the defendant’s middle name, that does not fall within the juror’s

generalized knowledge. This information could easily relate to the case because the

central issue was the identity of the drug seller.



              Under the majority opinion’s analysis, as a fact not in evidence, it

constituted an external influence. This means that, procedurally, it was to be

presumed prejudicial, and the burden fell upon the state to rebut the presumption. See

State v. Young, 866 S.W.2d 194, 196 (Tenn. Crim. App. 1992); State v. Blackwell, 664

S.W.2d 686, 689 (Tenn. 1984); see also Remmer v. United States, 347 U.S. 227, 229-

30, 74 S. Ct. 450, 451 (1954). Thus, the trial court would have erred by not allowing

the defendant the opportunity to have the juror testify.



              However, I would uphold the trial court because I do not believe that the

record supports a conclusion that the fact not in evidence was an improper influence
upon the jury. The record in this case reflects that the defendant does not contend that

the juror learned the defendant’s middle name during the trial stage. Instead, she

assumes that the juror had pretrial knowledge of her middle name. In this respect, I

believe that a distinct difference exists when the juror having particular knowledge of

events related to the case is totally honest during voir dire and the defendant has a full

opportunity to question the juror about that knowledge. Under such circumstances, the

fact that the defendant failed to question the juror fully before accepting him or her as a

trial juror is of no consequence. Acceptance of the jurors effectively constitutes the

parties’ consent that the jurors, with all their knowledge and experiences, will decide

the case. See, e.g., United States v. Rigsby, 45 F.3d 120, 125 (6th Cir. 1995). If such

were not the rule, it would be difficult to select juries, particularly in rural venues.

              The twentieth century American jury has moved a long way
              from its medieval origins. Today’s juror must be “indifferent”
              and “[h]is verdict must be based upon the evidence developed
              at the trial.” Still we would not lightly assume that the jury’s
              original role as the voice of the country may not sufficiently
              persist that neither the specific guarantees of an impartial jury
              and of confrontation nor the more general one of due process
              would be violated simply because jurors with open minds were
              influenced to some degree by community knowledge that a
              defendant was “wicked” or the reverse, even though this was
              not in evidence. One, although by no means the only,
              purpose of the insistence on trial in the vicinage both in Article
              III, § 2, and in the Sixth Amendment, must have been to
              entitle a defendant to trial where he is known–and this may
              sometimes work against him rather than in his favor. Indeed
              there are still sections of the country where it might be
              impossible to find twelve jurors who were totally ignorant
              about a defendant.

United States ex rel. Owen v. McMann, 435 F.2d 813, 817 (2d Cir. 1970) (citations and

footnote omitted).



              Absent a showing that a potential juror failed to disclose facts after

questioning that should reasonably elicit those facts, I would hold that dissemination of

those facts to other jurors during deliberations would not be improper. In the present




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case, nothing indicates that the juror was not candid during voir dire. Therefore, I see

no juror impropriety.




                                                _________________________
                                                Joseph M. Tipton, Judge




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