         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                          Assigned on Briefs September 23, 2008

         STATE OF TENNESSEE v. CHRISTOPHER BRIAN KNIGHT

                      Appeal from the Circuit Court for Jefferson County
                           No. 8220        O’Duane Slone, Judge



                     No. E2007-01456-CCA-R3-CD Filed February 9, 2009


JOSEPH M. TIPTON , P.J., dissenting.

        I respectfully dissent from the majority opinion’s conclusion that the defendant was not
entitled to a mistrial after Jimmy Calloway testified in rebuttal that the defendant said he did not
want to “go back to prison for six more years.” A criminal defendant is entitled to impartial and
unbiased jurors who are not influenced by inadmissible and prejudicial information such as the
defendant’s being convicted of another crime. See State v. Claybrook, 736 S.W.2d 95, 100 (Tenn.
1987).

         In State v. Caffey, 729 S.W.2d 266 (Tenn. Crim. App. 1986), the defendant complained that
the trial court dismissed a sitting juror who had overheard that the defendant was serving a lengthy
prison sentence. The defendant contended that the opportunity to rehabilitate the juror should have
been provided. This court disagreed and noted that such an opportunity is not provided by our
criminal rules when the disclosure is of inadmissible matters so prejudicial as to create a substantial
risk that the juror’s judgment would be affected. Id. at 269; see Tenn. R. Crim. P. 24(c)(2). This
court noted the prejudice caused by evidence of a defendant’s criminal history and affirmed the trial
court’s removal of the juror because it determined the “information was extremely prejudicial and
not freely admissible at trial.” Id. at 269.

        The evidence against the defendant in this case is definitely not overwhelming and largely
depends upon an eyewitness identification based upon a viewing for a matter of seconds. Under
these circumstances, I would conclude that the jury’s knowledge of a defendant having served time
in prison was prejudicial and more probably than not affected the verdict.

       I concur with the majority opinion’s reasoning and resolution of the other issues. However,
I would reverse the conviction and remand the case for a new trial.



                                                       ____________________________________
                                                       JOSEPH M. TIPTON, PRESIDING JUDGE
