                                                                                          06/07/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                              November 15, 2016 Session

            STATE OF TENNESSEE v. TONY EDWARD BIGOMS

                Appeal from the Criminal Court for Hamilton County
                      No. 286393    Barry A. Steelman, Judge


                             No. E2015-02475-CCA-R3-CD



ROBERT H. MONTGOMERY, JR., J., concurring in the results, in which TIMOTHY L.
EASTER, J., joins.

       All members of the panel agree that the Defendant must receive a new trial,
although we disagree, in part, about the reasons why a new trial is required. Specifically,
Judge Easter and I disagree with Judge Thomas’s analysis regarding whether a jury
separation occurred when the jurors were allowed to speak with family members by
telephone while in the presence of court officers, and we conclude that no separation
occurred. Likewise, Judge Easter and I depart from Judge Thomas’s analysis of the trial
court’s admission of evidence related to the Defendant’s knowledge of DNA matters due
to his presence at a prior judicial proceeding at which expert DNA proof was received.
Although Judge Easter and I agree with Judge Thomas that the evidence was
inadmissible, we disagree with his analysis pursuant to Tennessee Rule of Evidence
404(b) and believe, instead, that the proper framework for determining the admissibility
of the evidence is provided by Rules 401, 402, and 403.

                                     Jury Separation

        The lead opinion concludes that two impermissible jury separations occurred: first,
when the jurors were allowed to go home unattended to pack because they were to be
sequestered, and second, when they were permitted, during the trial, to make telephone
calls to non-jurors while the jurors were in the presence of court officers who could hear
the jurors’ conversations but could not hear what was said by the people with whom the
jurors spoke. I agree with the views stated in the lead opinion relative to the trial court’s
error in having permitted the jurors to go home unattended to pack, and I believe this
error warrants a new trial.
       I disagree, however, that an impermissible jury separation occurred when the
jurors were permitted to make telephone calls in the presence of court officers. As the
lead opinion notes, the jurors did not retain possession of their cell phones but were
allowed to use them in the presence of court officers while the jurors were in small
groups of three to five. The court officers could hear the jurors speaking on their phones,
but they did not monitor what was said by those with whom the jurors spoke during the
calls.

        Two of the four court officers who supervised the jury during the trial testified at
the hearing on the motion for a new trial. Officer Tim Higgs testified that the jurors were
only permitted to call their family members, that the trial judge specified that an officer
must be present at all times to monitor the calls, and that the conversations he monitored
related to family matters and not to the trial. He said that he heard everything the jurors
in his charge said and that he did not hear any impermissible discussion. Officer Jim
Pickett testified that, with the court’s permission, the jurors were permitted to “call
home.” He said that the jurors were told they were not allowed to talk about the trial with
their family members and that he listened to the conversations of the jurors whose calls
he supervised to ensure they complied with the instructions. Both officers testified that
they did not have any indication of the jurors’ having received outside information about
the case.

       The jury foreman testified at the hearing on the motion for a new trial, as well. He
stated that the jurors were permitted to make brief calls to family members in the
presence of a court officer. He said he was unaware of any jurors obtaining information
about the case outside of the courtroom, and he said his family members did not discuss
the case in his telephone calls with them.

       In its order denying the motion for a new trial, the trial court made the following
findings of fact:

              Officer Higgs was responsible for supervising the jury during the
       sequestration. He worked along with three other court officers . . . .
       Officer Higgs was present at the hotel when the jurors returned from
       packing their belongings and upon their arrival the jurors were asked
       whether they possessed any items which the Judge had instructed them not
       to bring, such as electronic devices. The jurors[’] cell phones were
       collected from them upon their arrival at the hotel. Officer Higgs recalled
       that the Court admonished the jurors before they left the Courthouse to
       pack their belongings that they should not discuss the case with their family
       and that such was the habit of the Court in prior cases. . . . The Court
       instructed the jury every evening not to learn about the case from any
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outside source and not to discuss the case with anyone or among
themselves and the Court inquired every morning as to whether the jurors
had followed these instructions. Officer Higgs did not observe anything or
any activity by any of the jurors that appeared to reflect an attempt to
violate any orders of the Court.

        While the jurors were sequestered their cell phones were kept in one
location under the control of a court officer. On two or three occasions,
three, four, or five jurors came to Officer Higgs’ room where he dialed a
requested phone number for the juror and the juror was given ten minutes
to make a phone call in the officer’s presence. These phone calls were to
family members of the jurors and at least two of the jurors were mothers
who were talking to their children. Some jurors never made such phone
calls. Higgs never heard any discussion regarding the trial. All of the calls
were made within three feet of him in his room. Officer Higgs could hear
all of the things said by the jurors and some of the things said by those to
whom the jurors were talking. Officer Higgs could not hear all of the
things that were said by those to whom the jurors were talking. . . .

       ....

       Officer Jim Pickett supervised the jury during the sequestration. He
did this along with three other court officers. He never saw or heard
anything that led him to believe that any of the jurors were getting
information about the case from outside the courtroom. Officer Pickett did
not keep any of the jurors[’] cell phones in his possession. Officer Higgs
held the cell phones belonging to the male jurors and Officer Burnette held
the cell phones belonging to the female jurors. The jurors would go to a
specific officer’s room where the phones were kept and three or four jurors
would be in each room with the officer. [Officer] Pickett described the
nature of the phone calls as “very limited” and [stated] that the calls were
made often although not every night of the sequestration. Officer Pickett
was present for some of the phone conversations and he never heard a juror
attempting to talk about the case. . . .

       [The] Jury Foreman . . . recalled that during the trial jurors were
allowed to go into an officer’s room, that the officer would hand the juror
the juror’s cell phone and that the juror would be allowed to call family for
approximately five minutes. The officers kept the jurors[’] cell phones and
the calls were made in the presence of the officer. He called home every
night. He never became aware that any juror was gathering information
                                     -3-
       about the case outside of the courtroom. None of his family members ever
       gave him any information about the case. None of his family members
       mentioned to him anything that was going on in the news. He never heard
       any juror talking about the case with a family member on a cell phone.
       During his service as Foreman of the Jury he did not learn that anybody had
       obtained any information about the case outside of the courtroom. . . .
       Throughout the entire time that he was with the other jurors, the entire time
       of sequestration, he did not ever hear any of the jurors talking about
       information about the case that they obtained from any outside source other
       than in the courtroom. He never had any concerns that any of the jurors
       had seen any media or new stories about the case. He never heard any
       information at all, or input about the case, other than what was presented in
       the courtroom. He recalled the phone calls from the jurors occurring every
       night and he did not recall anyone who did not make a phone call on a
       regular basis. . . . He did not hear all of what was said to the jurors on the
       other end of their cell phones[.] . . .

              ....

              The record reflects that when the jury entered the courtroom each
       day, and prior to the jury’s exiting the courtroom each day, the Court
       instructed the jury to follow the Court’s admonitions about not discussing
       the case or learning about the case from any source outside the courtroom
       and the Court inquired whether the jury had followed those instructions. . . .

        The trial court found that the jurors “were sufficiently under the control of the
court officers such that they remained sequestered” when they made the cell phone calls
to their family members. The court also found that “the procedure of requiring the jurors
to make the phone calls in small groups in the presence of and close proximity to a
supervising court officer satisfied the sequestration requirements.” The court stated that
alternatively, to the extent that the procedure employed might be viewed as having
constituted a separation of the jury, “the Court finds that the answers under oath, each
day, by each juror to the Court’s inquiry regarding whether the jurors had gained any
information about the case outside of the courtroom reflect that there was no prejudice to
the defendant.” The court also found, “The post-trial testimony of the jury Foreman
further establishes this lack of prejudice.”

       The first inquiry, of course, is whether a separation of the jury occurred in the case
at bar when the jurors called family members in the presence of court officers. The lead
opinion concludes that one did. For reasons that I will explain, I conclude otherwise.

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        The lead opinion analogizes the present case to an older, unpublished opinion of
this court, State v. Tracey Pendergrass, No. 03C01-9608-CC-00310 1997 WL 760724
(Tenn. Crim. App. Dec. 11, 1997); perm. app. denied (Tenn. Sept. 21, 1998). The lead
opinion notes the factual similarity that, in both cases, jurors made telephone calls in the
presence of court officers who heard only the jurors’ side of the conversations. In Tracey
Pendergrass, a court officer testified at a hearing on the defense’s motion for a mistrial
that the officer heard the jurors’ portions of the calls, which she said related to the jurors’
requesting that the people they called bring clothing and leave it in the jurors’ cars. The
trial court found that nothing improper occurred and that the defendant had not been
prejudiced by the calls. This court held, without analysis, that a jury separation occurred
but that the trial court applied an incorrect test in considering the defendant’s motion for
a mistrial. This court said that once the defendant establishes the fact of a jury
separation, the prosecution may explain the separation by showing that no
communication with non-jurors occurred or that any communication was unrelated to the
matter on trial and that the jurors formed no impressions, aside from those based upon the
testimony. If the prosecution establishes that no prejudice occurred, a harmless error
analysis may be conducted. Accordingly, this court remanded the case for an evidentiary
hearing and for the trial court to consider the question of juror separation in accord with
these principles. See Tracey Pendergrass, 1997 WL 760724, at *7-9 (relying on Hines v.
State, 27 Tenn. 597, 602 (1848)).

        I disagree with the Tracey Pendergrass panel’s summary conclusion that a jury
separation occurred when jurors made telephone calls in front of court officers and in the
absence of any evidence the calls pertained to the facts of the trial. In 1999, our supreme
court noted that the purpose of the sequestration rule is “to preserve a defendant’s right to
a fair trial and an impartial jury by protecting jurors from outside influences so that the
verdict will be based only upon evidence developed at trial.” State v. Bondurant, 4
S.W.3d 662, 671 (Tenn. 1999). I believe that the procedures followed in the present case
were consistent with this purpose and were sufficient to maintain the sequestration of the
jury.

        In this regard, I believe the present case is factually similar to James Dellinger and
Gary Wayne Sutton v. State, No. E2004-01068-CCA-R3-PC, 2006 WL 1679595, at *22-
23 (Tenn. Crim. App. June 19, 2006), perm. app. denied (Tenn. Oct. 30, 2006). As the
lead opinion notes, James Dellinger involved a “family night” event during a trial with a
sequestered jury. Court officers supervised the jurors and the jurors’ visiting family
members in a large room. The jurors were instructed not to discuss the case, and,
although court officers were present, they did not monitor individual conversations
between the jurors and the family members. This court concluded that the petitioners
failed to show that the jurors were “outside the presence of the court officers during the
family gathering” and that the petitioners were not entitled to post-conviction relief based
                                              -5-
upon a claim that the rule of sequestration had been violated. James Dellinger, 2006 WL
1679595, at *21-23.

        In my view, the communication that occurred at the family night in James
Dellinger is analogous to the brief calls the jurors in the present case were permitted to
make in the presence of other jurors and a court officer. Although the court officers in
neither situation heard every word said, the officers were present continuously and, at
least in the case at bar, heard all that the jurors said and some of what was said by the
persons the jurors called. In both cases, there was no evidence of any inappropriate
communication relative to the trial, and the facts are such that any inappropriate
communication would have been evident to the court officers attending the jurors.

       I am sensitive, in our world of rapidly evolving electronic connectivity, to the
challenges a trial court faces in preventing a jury from being contaminated by extraneous
outside information, and thereby, in maintaining a defendant’s right to a fair trial by an
impartial jury. I am also mindful of the difficulty in determining the boundaries for
preventing a separation, given the historical focus on keeping the jurors together
physically, the trend toward relaxing the rigidity of the traditional rule, and the ever-
advancing reach of electronic connectivity in everyday life.

       The jurors in the present case remained within the custody and control of court
officers at all times relevant to the telephone calls. The court officers were present, and
the jurors were in the presence of other jurors during the calls. The calls were brief, and
what the jurors said could be heard by the court officers. The jurors were not allowed to
keep their cell phones during the trial, and their only opportunity to use them was brief,
supervised, and communal. Neither the testifying court officers nor the jury foreman had
any indication that any information relevant to the trial had been received during the
telephone calls and, in fact, all indications were to the contrary. In my view, the
circumstances and environment in which the calls were made created no meaningful
opportunity for a violation of the rule of sequestration to occur, and no evidence shows
that one did, in fact, take place.

       I note that in the present case, the lead opinion considered the Defendant’s
argument that a jury separation occurred when the jurors were permitted to have lunch
with family members the day before the trial concluded. The lead opinion cites James
Dellinger as support for its conclusion that no jury separation occurred, a conclusion with
which I concur. I see no meaningful distinction, however, between the family lunch,
which the lead opinion concludes was not a separation of the jury, and the supervised
telephone calls, which the lead opinion concludes was a separation of the jury. In both
instances, the jurors were permitted to have supervised communication with non-jurors.
The court officers monitored the communications, but they did not hear everything that
                                            -6-
was said by all parties. I would hold that the Defendant failed to make a prima facie
showing that the rule of sequestration was violated by the supervised telephone calls and,
thereby, that the State was not required to establish a lack of prejudice to the Defendant
from the telephone calls.

       All of this said, however, I agree with the views stated in the lead opinion
regarding the separation of the jury when the jurors were permitted to go home to pack
and the presumed prejudice therefrom. For this reason, I concur in the lead opinion’s
conclusion that the convictions must be reversed and the case remanded for a new trial
due to jury separation related to the jurors’ trips home to pack.

                                 Admission of Evidence

        My second point of departure from the lead opinion pertains to its analysis of the
trial court’s admission of Agent Turbeville’s testimony regarding his previous testimony
in a prior judicial proceeding about recovery of DNA. The Defendant had been present at
the previous proceeding and, therefore, would have had knowledge of Agent Turbeville’s
testimony. The State theorized that the Defendant had removed the present victim’s head
and hands due to the Defendant’s knowledge of Agent Turbeville’s previous testimony
about recovery of DNA evidence from fingernail clippings and an oral swab. The State’s
theory is intertwined with evidence that the Defendant may have accidentally called the
victim on the day of her death and his having her telephone number stored in his cell
phone under the name “Dinae,” which was similar to both the victim’s name, Dana, and
the name of the victim from the previous trial, Dinah. The lead opinion analyzes the trial
court’s ruling on this issue pursuant to Tennessee Rule of Evidence 404(b), even though
an analysis of admissibility pursuant to Rule 404(b) was not conducted by the trial court.
I believe the proper analysis is pursuant to Rules 401, 402, and 403, which provide the
framework utilized by the parties and the court in the trial proceedings. Despite my
differing view upon the proper framework for determining the admissibility of this
evidence, I agree with the lead opinion’s conclusion that the trial court erred in admitting
the evidence and that the erroneous admission was not harmless.

       In order to be admissible, evidence must be relevant. See Tenn. R. Evid. 401, 402.
Relevant evidence, however, “may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.” Tenn. R. Evid. 403. Rule 404(b) prohibits the admission of
evidence related to other crimes, wrongs, or acts offered to show a character trait in order
to establish that a defendant acted in conformity with the trait. Tenn. R. Evid. 404(b).
Such evidence, though, “may . . . be admissible for other purposes,” including, but not
limited to, establishing identity, motive, common scheme or plan, intent, or absence of
                                            -7-
mistake. Id.; see State v. McCary, 119 S.W.3d 226, 243 (Tenn. Crim. App. 2003).
Before a trial court determines the admissibility of such evidence,

             (1) The court upon request must hold a hearing outside the jury’s
       presence;

              (2) The court must determine that a material issue exists other than
       conduct conforming with a character trait and must upon request state on
       the record the material issue, the ruling, and the reasons for admitting the
       evidence;

              (3) The court must find proof of the other crime, wrong, or act to be
       clear and convincing; and

             (4) The court must exclude the evidence if its probative value is
       outweighed by the danger of unfair prejudice.

Tenn. R. Evid. 404(b)(1)-(4).

       The trial court in the present case did not conduct an admissibility hearing
pursuant to Rule 404(b). In fact, the State argued to the trial court that Rule 404(b) was
inapplicable, a position with which I agree. The evidence that the State sought to and
was allowed to introduce – the fact of the Defendant’s knowledge, due to his presence at
the prior judicial proceeding, that DNA evidence could be collected from the hands and
mouth of an individual – did not constitute an other crime, wrong, or act of the Defendant
offered for the purpose of establishing identity, motive, common scheme or plan, intent,
or absence of mistake. See id. As such, the Rule 404(b) framework is inapt for analyzing
its admissibility. I believe the evidence of the Defendant’s knowledge that DNA could
be recovered from a person’s hands and mouth was relevant to the question of the
Defendant’s guilt of the abuse of a corpse charge and, to a somewhat lesser extent, the
first degree murder charge. I acknowledge that the evidence of the Defendant’s
knowledge regarding DNA evidence recovery could be viewed as probative of the
question of his identity as the perpetrator of the charged offenses. However, the evidence
the State sought to introduce – the fact of his knowledge – was not itself a prior bad act
and, as such, Rule 404(b) did not apply.

       Introduction of the evidence, however, carried with it the inherent risk that the jury
would infer that the Defendant had been on trial for Ms. Burney’s homicide in the prior
judicial proceeding. I believe this risk was compounded exponentially by the State’s
argument, “It would take a monster to assign [Dinah Burney’s] contact information to
Dana Wilkes’s telephone number,” and its argument that the Defendant’s having
                                             -8-
allegedly done so was “frightening,” “appalling,” “disturbing,” and “downright scary.”
Any inference that the Defendant had been on trial for Ms. Burney’s homicide and any
further inference that he was guilty of Ms. Wilkes’s homicide based upon a prior
accusation of homicide relative to a different victim speak directly to the harms Rule 403
seeks to avoid. See Tenn. R. Evid. 403. In my view, the danger of unfair prejudice,
confusion of the issues, and misleading the jury substantially outweighed the relevance of
this evidence, and the trial court erred in admitting it.

       Although I depart from the lead opinion’s analysis of the basis upon which this
evidence should have been excluded, I agree that its admission was not harmless. See
T.R.A.P. 36(b). I concur, therefore, in the lead opinion’s conclusion that the Defendant
must receive a new trial.


                                       Conclusion

       Except as expressed in this separate opinion, I concur in all other respects in the
lead opinion. I believe that a new trial is warranted due to errors related to separation of
the jurors and the erroneous admission of evidence. I am authorized to state that Judge
Easter joins in concurring in the results of the lead opinion and in the views expressed in
this concurring opinion.


                                          _____________________________________
                                          ROBERT H. MONTGOMERY, JR., JUDGE




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