        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                  April 20, 2010 Session

                STATE OF TENNESSEE v. JERRY LEN ANGUS

             Direct Appeal from the Criminal Court for Davidson County
                    No. 2007-C-2624     Mark J. Fishburn, Judge



               No. M2009-01151-CCA-R3-CD - Filed December 1, 2010


Defendant, Jerry Len Angus, was indicted in a seventeen-count indictment by the Davidson
County Grand Jury for three counts of official misconduct in violation of Tenn. Code Ann.
§ 39-16-402, nine counts of sexual battery by an authority figure in violation of Tenn. Code
Ann. § 39-13-527, four counts of statutory rape in violation of Tenn. Code Ann. § 39-13-
506, and one count of rape in violation of Tenn. Code Ann. § 39-13-503. Defendant was
convicted by a jury of three counts of official misconduct, one count of attempt to commit
sexual battery, a lesser-included offense of the charged offense of sexual battery, one count
of sexual battery, and two counts of attempt to commit statutory rape, a lesser-included
offense of statutory rape. The jury did not consider eight counts of the indictment as the trial
court granted judgments of acquittal at the close of the State’s proof, and Defendant was
acquitted by the jury of the remaining two counts. Defendant filed a motion for new trial,
and following a hearing, the trial court vacated his conviction for official misconduct in
Count 1 of the indictment for insufficiency of the evidence. The court granted a mistrial as
to Defendant’s conviction for attempted sexual battery in Count 4, his conviction for official
misconduct in Count 8, and his conviction for sexual battery in Count 11. In an amended
order, the trial court also vacated Defendant’s conviction for official misconduct in Count
3 of the indictment. On appeal, Defendant asserts that the trial court’s polling of the jury
was improper and that he is entitled to a new trial. Finding no error, we affirm the
judgments of the trial court.

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

THOMAS T. WOODALL, J., delivered the opinion of the Court, in which DAVID H. WELLES
and JOHN EVERETT WILLIAMS, JJ., joined.

John S. Colley, III, Columbia, Tennessee, for the appellant, Jerry Len Angus.
Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney
General; Victor S. (Torry) Johnson, III, District Attorney General; J.W. Hupp, Assistant
District Attorney General; and Brian Holmgren, Assistant District Attorney General, for the
appellee, the State of Tennessee.

                                          OPINION

       The sole issue raised in this appeal is whether the two counts of attempt to commit
statutory rape for which Defendant stands convicted should be vacated for lack of unanimity
in the jury’s verdict. Defendant alleges that his due process rights were violated by the
procedure employed by the trial court in polling the jury after the verdict was announced.
A summary of the facts leading to the convictions is not necessary to address the issue raised
on appeal.

        The record shows that following deliberations, the jury returned to the courtroom, and
the trial court read the jury’s verdict and sua sponte polled the jury. Defense counsel then
requested individual polling because, according to him, “[Juror] Ms. Davis several times did
not hold her hand up or only did it at the Court’s prompting.” During the individual polling
by the trial court, it became apparent that another juror, Ms. Febo, did not agree, in part, with
the verdict. Juror Febo stated as to Count 4 of the indictment, “My vote was different, but
I vote guilty.” The trial court sent the jury out and discussed the jury polling with counsel
for Defendant and the State. The jury was brought back into the courtroom, and the trial
court addressed the jury as follows:

        First of all, I’m going to start count four individual polling of the jurors
        over again.

        On an individual poll, each of you have to announce in open court for the
        record when I call your name whether or not the verdict, which I will read
        to you, is the verdict – is your verdict, is your individual verdict for each
        count. I need to hear that individually and independently by each of you.
        If any of you have confusion about what I’m asking, communicate with the
        Court. I’ve been – it’s been represented that a verdict has been reached, I
        have taken the verdict based on the show of hands, but the law allows for
        individual polling. As of right now, your discussions and deliberations are
        over with. It is my responsibility to ensure both sides that a unanimous
        verdict has in fact been reached. I know you all have been under a lot of
        stress over a span of three different days working on an extremely difficult
        situation and I know that probably all of you are tired and nerves frazzled


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        and everything, so if that’s not your verdict, I just need to know whatever
        it is so that I can then address that particular issue.

       The court then resumed individual polling, and as to Count 4, charging Defendant
with attempt to commit sexual battery by an authority figure, juror Davis indicated that she
had voted guilty, but denied that guilty was her individual verdict. As to Count 5, charging
Defendant with sexual battery, to which the jury had returned a verdict of not guilty, juror
Davis again indicated that this was not her individual verdict. As to Count 8, all jurors
affirmed the guilty verdict. As to Count 11, charging sexual battery, juror Davis again
denied that her individual verdict was guilty. As to Counts 12 and 13, charging Defendant
with statutory rape, all jurors affirmed the verdicts of guilty to the lesser-included offense
of attempt to commit statutory rape. As to Count 17, charging rape, all of the jurors affirmed
the not guilty verdict.

        During the individual polling, juror Febo affirmed her individual verdict as to all of
the above counts. After the trial court completed the individual polling, however, juror Febo
indicated that she disagreed with some of the jury’s verdicts. She stated, “What I wanted
to say was, in some of them, I didn’t agree, I didn’t – my vote was not guilty, but because
nobody felt the same way that I did, I had to vote guilty. There was no other way.”
Specifically, juror Febo told the trial court that as to Count 4, she did not agree with the
jury’s guilty verdict. The trial court again sent the jury out and addressed the issue with
counsel. Counsel for Defendant made a motion for mistrial, which the trial court denied.
When the jury was brought back in, the trial court once again individually polled jurors Febo
and Davis only as to Counts 4, 5, 8, 11, 12, 13, and 17, and both jurors affirmed the verdicts
of the jury.

                                           Analysis

        Defendant contends, as to the two counts of attempted statutory rape for which he
stands convicted, that “he did not receive a fair trial on these counts, nor was the verdict
unanimous.” Defendant asserts that he is entitled to a new trial on Counts 12 and 13. The
State contends that because Defendant failed to object at trial or raise the issue of the
impropriety of the trial court’s polling procedure in his motion for new trial, the issue is
waived. The State further asserts that because Defendant failed to provide a transcript or
other record of the hearing on Defendant’s motion for new trial, this Court must presume
the trial court’s ruling is correct.

       Generally, where a party fails to include an issue in its motion for new trial, the issue
is waived. Tenn. R. App. P. 3(e); see State v. Walker, 910 S.W.2d 381, 386 (Tenn. 1995).
Also, it is the duty of the accused to provide a record which conveys a fair, accurate and

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complete account of what transpired with regard to the issues which form the basis of the
appeal. Tenn. R. App. P. 24(b); see State v. Taylor, 992 S.W.2d 941, 944 (Tenn. 1999).

       The record before us does not contain a transcript of the hearing on Defendant’s
motion for new trial, and the transcript from the reading of the jury verdict and subsequent
polling shows that defense counsel failed to object specifically to the polling procedure
employed by the trial court. However, defense counsel moved the trial court to declare a
mistrial after the court sent the jury out for the second time. Furthermore, in his motion for
new trial, Defendant contends that the jury polling procedure employed by the trial court was
improper. The motion states as grounds for a new trial, “[o]nce jurors announce the
delivered verdict was not theirs, the only two options available to the Court are (1) a mistrial
on those counts or (2) instructing the jury to continue its deliberations to a unanimous
verdict. This Court did neither.”

       Tenn. R. App. P. 24(b) permits an appellant to file less than a complete transcript if
the determination of the issues it intends to raise will not require the appellate court to
review the entire transcript. We conclude that a transcript of the trial court’s hearing on
Defendant’s motion for new trial is not necessary to determine the issue raised in this appeal.
The record before us does contain a transcript of the trial proceedings as well as Defendant’s
motion for new trial and the trial court’s order and amended order. We will, therefore,
address this issue on the merits.

        Tennessee Rule of Criminal Procedure 31(e) provides “After a verdict is returned but
before the verdict is recorded, the court shall – on a party’s request or on the court’s own
initiative – poll the jurors individually. If the poll indicates that there is not unanimous
concurrence in the verdict, the court may discharge the jury or direct the jury to retire for
further deliberations.” Following the federal rule for guidance, a panel of this Court
addressed the issue of jury polling, as an issue of first impression, in State v. Clayton, 131
S.W.3d 475 (Tenn. Crim. App. 2003):

        An examination of the application of Federal Rule of Criminal Procedure
        31(d) reveals that a trial court’s method of polling the jury is subject to an
        abuse of discretion standard. Additionally, federal courts have also noted
        that Rule 31(d) “invests that trial judge with a measure of discretion in
        assessing the impact of a dissenting vote during a jury poll, and the
        reasonable exercise of this discretion should be accorded proper deference
        by a reviewing court.”

        ****


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        Additionally, . . . ., it rests within the trial court’s discretion to determine
        the manner of polling the jury. . . . Thus, it stands to reason that the trial
        court’s determination of whether a juror’s answer to the jury poll is
        equivocal is within the trial court’s discretion.

Id. at 478-79 (citations omitted).

       In that case, the trial court observed one juror’s hesitation “for about five seconds”
before her affirmation of the jury verdict. This Court concluded that the trial court did not
interpret the juror’s hesitation as her disagreement with the jury verdict. This Court further
concluded, “[w]e discern no reason why the trial court, once satisfied with the unanimity of
the verdict, should have conducted further inquiries.” Id. at 479.

       In this case, two members of the jury did more than hesitate. As the trial court
observed in its order, “Ms. Febo and Ms. Davis voiced their disagreement with the verdict
on several occasions before ultimately agreeing to the verdicts announced.” The court
further explained,

        The court had the opportunity to observe both jurors during the lengthy
        verdict process. The court observed the comments made towards Ms. Febo
        by another juror when she dissented from the verdict. The court also noted
        both jurors were shaking their heads when the original verdict was read and
        during individual polling. It is also not lost on the court that staff had to
        intervene with the jury when they were sent out the first time because of
        angry name-calling. Finally, the court recalls the general defeated
        demeanor of both jurors of having surrendered their individual convictions
        when they ultimately concurred with the announced verdict (heads down,
        somber voice and suddenly reticent attitude).

       The court concluded, as to Counts 4, 5, 8, and 11, that both the repetitive polling and
limiting the third polling to the two jurors in question could have compromised the integrity
of the verdict process and “could have given the unintended effect of the court expressing
its dissatisfaction with their dissent and giving them the opportunity to correct their
misapprehension with the verdict.” Therefore, the court ruled that the jury’s verdicts as to
Counts 4, 5, 8, and 11 were not unanimous and, accordingly, declared a mistrial as to those
counts. The court also vacated Defendant’s conviction in Count 3, as it was dependent upon
a guilty verdict in Count 4. The trial court granted a new trial as to all of those counts.

       Defendant contends that because of the lack of unanimity in the jury’s verdicts as to
the above counts, his convictions should be vacated in Counts 12 and 13 as well. The State

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argues that the record does not support a finding that the jury’s verdict as to Counts 12 and
13 was anything less than unanimous. We agree. The record shows that when individually
polled, jurors Febo and Davis both affirmed the jury’s verdict of guilty as to these two
counts. There is nothing in the record to suggest that any of the jurors exhibited any
disagreement with the verdict in Counts 12 and 13. Furthermore, the trial court, in its order,
did not find any of the above indicators of juror dissent as to those counts. Accordingly, we
conclude that the trial court did not err by declining to grant a new trial as to Counts 12 and
13.

                                      CONCLUSION

       Based on our review of the record, the judgments of the trial court are affirmed.


                                                    _________________________________
                                                    THOMAS T. WOODALL, JUDGE




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