         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs November 28, 2001

          THOMAS A. STREET v. HOWARD CARLTON, WARDEN,
                      and STATE OF TENNESSEE

                 Direct Appeal from the Criminal Court for Johnson County
                            No. 3613    Lynn W. Brown, Judge



                                  No. E2001-00998-CCA-R3-CO
                                         January 8, 2002

The petitioner was convicted of first degree murder for a killing that occurred in 1985, and was
unsuccessful both in a direct appeal of his conviction and a petition for post-conviction relief.
Subsequently, he filed a petition for writ of habeas corpus, the denial of which is the basis for this
appeal. In that petition, he claimed, as he had in his earlier petition for post-conviction relief, that
his conviction should be reversed because the jurors were allowed to separate during the trial. Based
upon our review, we affirm the post-conviction court’s dismissal of the petition.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JOHN
EVERETT WILLIAMS, JJ., joined.

Thomas A. Street, Northeast Correctional Complex, Mountain City, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General;
and Patricia C. Kussmann, Assistant Attorney General, for the appellee, State of Tennessee.

                                              OPINION

        The petitioner, Thomas A. Street, was convicted in the Morgan County Criminal Court of
first degree murder and sentenced to life in prison. The conviction and sentence were affirmed on
direct appeal by this court. See State v. Street, 768 S.W.2d 703 (Tenn. Crim. App.), perm. to appeal
denied (Tenn. 1988). In a subsequent petition for post-conviction relief, he argued that the
conviction should be reversed because of an alleged erroneous instruction as to premeditation and
because some members of the jury were allowed to attend a “singing” during the trial. This court
affirmed the post-conviction court’s dismissal of the petition. See State v. Thomas A. Street, No.
03C01-9309-CR-00329, 1994 Tenn. Crim. App. LEXIS 611 (Tenn. Crim. App. Sept. 26, 1994).
        The petitioner has again complained as to the separation of the jurors, this time in a petition
for writ of habeas corpus, arguing that the judgment of conviction is “prima facie void” because
some of the jurors were allowed to separate to attend the “singing.”

                                              ANALYSIS

                                         Standard of Review

       Since we are determining a question of law in reviewing the post-conviction court’s ruling
on the petition for writ of habeas corpus, we review the matter de novo with no presumption of
correctness. Jackie W. McLaney v. Ricky Bell, Warden, No. M1998-00187-SC-R11-PC, 2001
Tenn. LEXIS 764, at *4 (Tenn. Oct. 30, 2001) (citing Hart v. State, 21 S.W.3d 901, 903 (Tenn.
2000)). Our determination is whether the judgment is “void,” as the petitioner asserts, and not
merely “voidable.” Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999).

                                            DISCUSSION

        The statute in effect at the time of the petitioner’s trial regarding juror separation provided
as follows:

                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 (1982).

        The prohibition against separation of jurors is to prevent outside influences, but keeping
jurors together as a unit during a trial and deliberations is difficult to achieve, if taken literally. As
explained by our supreme court in State v. Bondurant, 4 S.W.3d 662, 671-72 (Tenn. 1999):

                   Initially we note that at common law, the sequestration rule
                required that jurors be physically kept together within the presence of
                each other without food, drink, fire or light until a verdict was agreed
                upon. Gonzales v. State, 593 S.W.2d 288, 292 (Tenn. 1980);
                Annotation, Separation of Jury in Criminal Case, 34 A.L.R. 1115,
                1117 (1925). The common law rule has been greatly relaxed, and
                currently, sequestration is a creature of statute. Mary Strauss,
                Sequestration, 24 Am.J.Crim. L. 63, 70 (Fall 1996). Moreover, under
                modern law, the test of keeping a jury “together” is not a literal one,
                requiring each juror to be at all times in the presence of all others.

                                                   -2-
               The practical needs of personal hygiene and separate rooms for
               sleeping, if nothing else, preclude such a literal application. The real
               test is whether a juror passes from the attendance and control of the
               court officer. State v. Bartlett, 137 Vt. 400, 407 A.2d 163, 166
               (1979).

                   Although the sequestration rule is no longer literally applied, the
               purpose of the rule–to preserve a defendant's right to a fair trial and
               impartial jury by protecting jurors from outside influences so that the
               verdict will be based only upon evidence developed at trial–is
               perhaps more important in the modern age, considering the
               pervasiveness of media coverage and publicity. 23A C.J.S. Criminal
               Law § 1363(a) (1989). Many years ago, this Court emphasized that
               “[t]oo much strictness cannot be used to keep a jury charged with the
               life or liberty of a citizen, from mingling with the community during
               their deliberations, and this the more especially where there is any
               excitement for or against the prisoner.” Cochran v. State, 26 Tenn.
               (7 Hum.) 544, 547 (1847).

        Our supreme court explained, in State v. Ritchie, 20 S.W.3d 624, 630 (Tenn. 2000), the
limited range of habeas corpus relief in Tennessee:

                  Unlike the federal writ of habeas corpus which reaches as far as
               allowed by the Constitution, the scope of the writ within Tennessee
               does not permit relief from convictions that are merely voidable for
               want of due process of law. Rather, the writ of habeas corpus will
               issue in Tennessee “only when ‘it appears upon the face of the
               judgment or the record of the proceedings upon which the judgment
               is rendered’ that a convicting court was without jurisdiction or
               authority to sentence a defendant, or that a defendant’s sentence of
               imprisonment or other restraint has expired.” [Archer v. State, 851
               S.W.2d 157, 164 (Tenn. 1993)] (quoting Galloway, 45 Tenn. (5
               Cold.) at 336-37).

       For his argument that the separation of jurors resulted in a void judgment, the petitioner relies
upon the holding of our supreme court in Hickerson v. State, 141 Tenn. 502, 213 S.W. 917, 918
(1919), considering the direct appeal of a conviction:

                It is well settled in Tennessee that the separation of the jury in a
                felony case, and the possibility that a juror has been tampered with
                and received other impressions than those derived from the testimony
                in court, renders the verdict prima facie vicious. The separation may
                be explained and it may be shown by the state that the separated juror

                                                  -3-
                had no communication with others, and that, if said communications
                were had, they did not relate to the case on trial. The burden is upon
                the state, however, to make a satisfactory explanation. Sherman v.
                State, 125 Tenn. 19, 140 S.W. 209, and cases therein reviewed.

        In his reply brief, the petitioner argues that “vicious” means void and not merely voidable.
A void, as opposed to a voidable, judgment has been defined by our supreme court as “one in which
the judgment is facially invalid because the court did not have the statutory authority to render such
judgment.” Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998); see also Taylor v. State, 995
S.W.2d 78, 83 (Tenn. 1999); Jerrel Livingston v. James M. Dukes, Warden, No. W2000-00840-
CCA-R3-CD, 2000 Tenn. Crim. App. LEXIS 644, at *4 (Tenn. Crim. App. Aug. 22, 2000).
Applying the petitioner’s argument to the holding in Hickerson, we would establish the principle that
a judgment which is void because of juror separation is nonetheless upheld on appeal because of a
sufficient showing by the State that, during the period of separation, the jurors either received no
outside communication, or, if so, it did not relate to the trial. It is axomatic that such a judgment
could only be voidable, and not void, as the petitioner asserts.

         It is clear that, in Tennessee, allowing jurors to separate during a trial can result in a voidable
judgment. The petitioner’s avenue to air his complaint was through a petition for post-conviction
relief, which he has already utilized unsuccessfully.

                                            CONCLUSION

       Based upon the foregoing reasoning and authorities, we affirm the judgment of the post-
conviction court.



                                                          ___________________________________
                                                          ALAN E. GLENN, JUDGE




                                                    -4-
