            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT JACKSON

                          DECEMBER 1999 SESSION


STATE OF TENNESSEE,           *      C.C.A. # W1999-00027-CCA-R3-CD
                                     (formerly 02C01-9902-CC-00051)
             Appellee,        *
                                     HENRY COUNTY
VS.                           *
                                     Honorable C. Creed McGinley, Judge
ROBERT EMMET DUNLAP, JR., *
                                     (Three Counts of Sale of Cocaine)
             Appellant.       *

                                                          FILED
                                                          February 2, 2000
For Appellant:                       For Appellee:
                                                        Cecil Crowson, Jr.
Matthew M. Maddox                    Michael E. Moore  Appellate Court Clerk
Maddox, Maddox & Maddox              Solicitor General
19695 East Main Street
P.O. Box 430                         Patricia C. Kussmann
Huntingdon, TN 38344                 Assistant Attorney General
                                     425 Fifth Avenue North
                                     Nashville, TN 37243-0493

                                     Robert "Gus" Radford
                                     District Attorney General

                                     Steven L. Garrett
                                     Assistant District Attorney General
                                     24th Judicial District
                                     P.O. Box 686
                                     Huntingdon, TN 38344




OPINION FILED:__________________________


AFFIRMED



GARY R. WADE, PRESIDING JUDGE
                                       OPINION

              The defendant, Robert Emmet Dunlap, Jr., was convicted on three

counts of the sale of cocaine, a Schedule II controlled substance. See Tenn. Code
Ann. § 39-17-417(a)(3). Fines totaled $225,000.00. The trial court imposed

sentences of ten years on each count to be served concurrently with each other but

consecutively to a prior sentence for a conviction in Montgomery County.


              The defendant appealed on several grounds, one of which was

whether the trial court erred by denying a motion to subpoena jurors in an effort to
determine whether they had relied upon extrajudicial information in reaching their

verdict. In an opinion filed September 21, 1998, this court affirmed in part but

remanded the cause to the trial court to consider the following questions:
              (1) Did the jury receive information from a juror about the
              appellant's past criminal history?

              (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 should order a new trial.

After conducting an evidentiary hearing wherein three of the jurors testified, the trial

court concluded that "the verdict of the jury was based upon nothing other than the

evidence introduced during the course of the trial" .. and "to the extent that post-
verdict information was disseminated amongst them after their discharge from jury

service, this information could not, and did not, influence the jury verdict." The trial

court refused a request by the defendant to subpoena additional jurors. Thereafter,
the defendant appealed, claiming that the trial court had erroneously refused to hear

any additional witnesses who might testify that a juror may have introduced

extraneous evidence during deliberations.


              We find no error and affirm the judgment of the trial court.



              The initial remand for further proceedings was based upon an affidavit
by Jennifer McMackin, a secretary in the office of defense counsel, who filed an

affidavit asserting that juror Mary Lou Riley received information during deliberations

that the defendant had a prior drug case for which he was not punished. Ms.

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McMackin also swore that juror Jeffery Allen remembered a discussion about the

defendant's prior drug case. Neither juror Riley nor juror Allen submitted affidavits.

Juror Riley explained that she could not recall whether the prior drug case was
mentioned during or after deliberations on the verdict.



              Jurors James Hugh Morris, Mary Lou Riley, and Jeffery Allen testified
at the hearing. Juror Morris, examined by the trial court, stated that the verdict was

based upon evidence presented in the courtroom and nothing else. When asked

whether the jury had received "extraneous information concerning any past dealings
of the defendant or any prior criminal record," juror Morris responded in the

negative. On cross-examination by defense counsel, juror Morris denied having

made a statement that the defendant had been previously arrested and prosecuted
for another crime. He also denied knowing whether or not the defendant had ever

been arrested on a different charge. Juror Riley testified that the verdict was based

entirely upon the evidence presented at the trial.



              On cross-examination by defense counsel, she testified that what she
had told Jennifer McMackin was that, after the verdict had been rendered, one of

the jurors, who she was able to generally describe, remarked that the defendant had

"been up before for trial and got off."


              Juror Allen also testified that the jury considered nothing other than the

evidence presented at trial. On cross-examination, he recalled having a
conversation with Ms. McMackin to the effect that he had learned about a prior

charge against the defendant. Juror Allen also remembered that he had received

the information from a "stocky gray-headed gentleman" on the jury after they had

agreed upon a guilty verdict. Juror Allen asserted that the information had no
influence on the verdict.



              At the conclusion of the hearing, the defense asked that Richard
McClain, "possibly the gentleman in question," be summoned to testify. While


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conceding that the jury did not have any extraneous information before the verdict

had been reached, defense counsel sought to clarify whether the juror in question

was asked about any prior knowledge of the defendant during voir dire and had
failed to be forthcoming on the subject. Defense counsel argued that the issue had

changed from whether the jury had received extrajudicial information to whether a

particular juror had detrimental information about the defendant that he chose not to
reveal on voir dire. The trial court declined to hear further testimony based upon his

conclusion that the jury did not receive information about the defendant's prior

criminal history prior to reading its verdict and was not influenced by extraneous
information.



               In this appeal, the defendant argues that the trial court should have
required juror Richard McClain to appear and testify. He argues that the juror in

question may have given false information during voir dire.



               Tenn. R. Evid. 606(b) allows for a limited inquiry into the validity of the

verdict. It 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...." As

indicated in our prior opinion, 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 at 333 (3rd ed. 1995).

The information is deemed prejudicial if it had an influence on the verdict of the jury.
See Patton v. Rose, 892 S.W.2d 410 (Tenn. Ct. App. 1994).



               The burden is on the defendant to establish jury misconduct. State v.

Blackwell, 664 S.W.2d 686 (Tenn. 1984). While the defendant is entitled to a
verdict untainted by extraneous, prejudicial information, there is also the importance

of maintaining inviolate the nature of jury deliberations. Maldonado v. Missouri Pac.

Ry., 798 F.2d 764, 770 (5 th Cir. 1986). Jurors must render their verdict based on
the evidence introduced at trial. Citizens' St. Ry. v. Burke, 98 Tenn. 650, 40 S.W.


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1085 (1897). The trial court has the discretion to determine whether a jury has

acted impartially. State v. Sammons, 656 S.W.2d 862, 869 (Tenn. Crim. App.

1982). Findings of fact made by the trial court as to jury impartiality may be
overturned only for "manifest error." State v. Cazes, 875 S.W.2d 253, 262 (Tenn.

1994), citing Patton v. Yount, 467 U.S. 1025, 1031 (1984).



              Here, the state concedes that the testimony of the three jurors

establishes that one of the jurors knew before engaging in deliberations that the

defendant had been prosecuted on a prior drug offense. It maintains, however, that
the record supports the trial court's conclusion that other jurors did not learn of that

prior history until after the completion of deliberations.



              In our view, the real claim made by the defendant is that one of the

jurors should have been disqualified. Juror disqualifications are based upon either

(1) propter defectum or (2) propter affectum. Partin v. Henderson, 686 S.W.2d 587

(Tenn. App. 1984). Objections based on general disqualifications, such as familial

relationship, are within the propter defectum class and as such, must be challenged
before a verdict. Id. at 589. In contrast, disqualification based on propter affectum

exists due to some bias or partiality toward one party in the litigation. Id.; Toombs v.

State, 270 S.W.2d 649, 651 (Tenn. 1954). Propter affectum objections may be
made after the return of the jury verdict. Id.; Durham v. State, 188 S.W.2d 555, 557

(Tenn. 1945). Because the defendant claims bias or partiality in favor of the state,

this is a case of propter affectum. State v. Furlough, 797 S.W.2d 631, 652 (Tenn.
Crim. App. 1990).



              In Warden v. State, 381 S.W.2d 247 (1964), our supreme court ruled

that a prospective juror who had observed the defendant being prosecuted on a
similar charge in a earlier trial could not be disqualified for that reason alone:

              Since the record ... does not show that any of the
              members of the jury ... had formed or expressed any
              opinion as to the guilt or innocence of the defendants of
              the offense being tried, or of any offense on the part of
              either of them, the mere fact that they had heard
              testimony given in the trial of these defendants on

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              another offense would not of itself disqualify the jurors.

Id. at 249.



              The trial court has satisfactorily answered the questions presented on

our earlier remand of the case. That is, other jurors did not receive information

about the defendant's prior criminal history prior to reaching its verdict. Because it
was not communicated to the other jurors, there could have been no prejudicial

effect as to the jury at large. Moreover, the burden is upon the defendant to

establish a basis for juror disqualification. Here, the defendant had an opportunity in
the hearing on the motion for new trial and the hearing on the remand to establish

any knowledge that juror McClain had which would have been the basis for

disqualification. He has been unable to do so. This record does not include the voir
dire of the jury. The defendant does not argue in this appeal that the juror

intentionally withheld information. Most importantly, the record does not establish

that a particular juror was prejudiced against the defendant. Our review suggests

that the verdict was not influenced by any knowledge by a juror of a prior crime but

instead substantial proof of guilt as deemed sufficient by the prior opinion of this
court.



              Accordingly, the judgment is affirmed.


                                          __________________________________
                                          Gary R. Wade, Presiding Judge

CONCUR:



_____________________________
Norma McGee Ogle, Judge



_____________________________
John Everett Williams, Judge




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