         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs February 24, 2004

           STATE OF TENNESSEE v. MARTY WILLIAM THOMAS

                 Direct Appeal from the Criminal Court for Hamilton County
                           No. 237927    Douglas A. Meyer, Judge



                       No. E2003-00829-CCA-R3-CD - Filed July 16, 2004


The appellant, Marty William Thomas, was convicted by a jury in the Hamilton County Criminal
Court of four counts of aggravated rape and one count of aggravated burglary. Following a hearing,
the trial court sentenced the appellant to an effective sentence of fifty-four years incarceration in the
Tennessee Department of Correction. On appeal, the appellant claims that the trial court erred by
(1) admitting into evidence three photographs of the appellant taken on different dates; (2) replaying
only the direct testimony of the victim for the jury during deliberation; and (3) denying the
appellant’s motion for a mistrial on the ground that the jury was prejudiced by media reports. Upon
review of the record and the parties’ briefs, we affirm the judgments of the trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and ALAN
E. GLENN , JJ., joined.

Mike A. Little, Chattanooga, Tennessee, for the appellant, Marty William Thomas.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General;
William H. Cox, District Attorney General; and Barry A. Steelman, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION

                                       I. Factual Background

        In the early morning hours of February 26, 2000, the victim and her five-year-old son were
asleep in her bed when she was awakened “by someone shoving [her] right shoulder.” The intruder
placed his gloved hands into the victim’s mouth and told her not to scream or he would kill her and
her son. At that time, the victim’s son awoke and began screaming. The intruder ordered the victim
to cover her son. The victim complied, and the child stopped screaming. However, the victim
continued to scream, resulting in the intruder placing a pillow over her face.
        The intruder used an unknown object to rip the victim’s nightgown and expose her breasts.
He placed his mouth on her breast and forced her to masturbate. The intruder then performed
cunnilingus on the victim. When he finished, the intruder forced the victim to stand and he “brushed
up against [her].” He told the victim that there were other persons downstairs who “were going to
do the same thing to [her].” He then rummaged through one of the victim’s dresser drawers until
he found a pair of black pantyhose. He ordered the victim to sit on his lap and put on the pantyhose.

         When the victim finished putting on the pantyhose, the intruder forced her to perform oral
sex on him. He then ordered the victim to her knees. The victim testified at trial that when the
intruder ordered her to her knees, she believed she was going to die. The intruder ripped the crotch
of the victim’s pantyhose with an unknown object and demanded that she “turn over.” As the victim
“turn[ed] over,” she observed two screwdrivers laying on the chest-of-drawers. The intruder
penetrated the victim vaginally. However, upon determining that vaginal intercourse was “not
right,” the intruder told the victim to turn over and he penetrated her anally. According to the victim,
“that’s whenever he finished.”

        Once the intruder had “finished,” he ordered the victim to stand. The victim pleaded, “Don’t
kill me. Don’t kill me.” The intruder told the victim to face the bed and remove the pantyhose. The
victim complied. The intruder then ordered her to lie on the bed underneath the covers. The intruder
collected the victim’s nightgown and pantyhose and left the apartment.

         Once the victim was certain that the intruder had left, she went downstairs and called 911.
Downstairs, the victim observed an open door which she assumed the intruder had used to enter and
exit the apartment. However, when the police arrived, they informed the victim that a screen had
been removed from one of the living room windows and the window was broken. Shortly thereafter,
the victim was taken to the “Rape Crisis Center” where rape kit testing was performed. The victim
testified that she had abrasions around her mouth where the intruder had put his gloved hands.

        At trial, the victim testified that she did not know her assailant, nor was she able to make a
positive identification when shown photographic lineups of suspects. She related that at the time
of the offenses her bedroom was dark with limited light coming through her bedroom door from the
hallway. Moreover, the intruder prevented her from looking at him by covering her eyes and
threatening her. However, when the intruder initially awakened her, she was able to note certain
features, such as a dark moustache, a receding hairline, a pointed nose, blue jeans, and a long jacket.
The police used this information to prepare a composite of her assailant. At trial, the victim noted
that the appellant bore the features of her assailant.

          Chattanooga Police Officer Mark Shelton testified that at approximately 6:14 a.m. on
February 26, 2000, he was dispatched to the victim’s townhouse at the Morrison Springs
Apartments. The victim reported that she had been raped. Upon investigation, Officer Shelton
discovered what appeared to be the “point of entry,” a living room window. Officer Shelton went
outside to investigate. He observed that the screen was missing, the window was “slightly ajar and
. . . there was [evidence of] some force to it.”


                                                  -2-
         Investigator Timothy Commers of the Chattanooga Police Department’s Crime Scene Unit
testified that on February 26, 2000, he was called to assist in the investigation of a rape at the
Morrison Springs Apartments. As he photographed the exterior of the victim’s townhouse, he
observed that a window screen was missing from one of the living room windows. He further
observed that “the upper section of that window . . . had cracked glass . . . very near the center of the
window, and [there were] pry marks on the lower section of the window toward the right side of the
frame.” Investigator Commers testified that the pry marks appeared to have been made by some type
of tool, possibly a screwdriver. Later that morning, officers discovered the missing screen in an
overgrown thicket approximately three hundred feet from the victim’s townhouse. Investigator
Commers took the screen into evidence and processed it for prints.

         Investigator Edwin Duke, a latent print examiner with the Chattanooga Police Department,
testified that he received a court order to compare photographs of the prints on the window screen
with the fingerprints of the appellant. Investigator Duke obtained prints of the appellant’s fingers
and palms. The print of the appellant’s right palm matched that of a palm print found on the window
screen. Special Agent Oakley W. McKinney, a forensic scientist with the Tennessee Bureau of
Investigation (“TBI”), also compared the appellant’s prints with photographs of the prints on the
window screen. At trial, Special Agent McKinney testified that latent prints from the window screen
matched prints of the appellant’s right middle finger and right palm.

        Mary Katherine Spada testified that she was employed as a nurse at the Sexual Assault
Resource Center, also known as the Rape Crisis Center. On February 26, 2000, she examined the
victim in the instant case. Spada noted abrasions on the victim’s face, which abrasions the victim
claimed had been caused by her assailant placing his gloved hands over her mouth. Because the
victim claimed to have been vaginally and anally raped, Spada obtained vaginal and anal swabs. She
also obtained an oral swab. Spada placed the swabs and the victim’s panties in a rape kit, which she
sealed and gave to police.

         An audiotape of the prior sworn testimony of Detective Larry Swafford, who was deceased
at the time of trial, was played for the jury. Detective Swafford testified that he was present when
a sample of the appellant’s blood was obtained, which sample was subsequently sent to the TBI
crime laboratory. Qadriyyah Pillow Debnam, a serologist and DNA analyst with the TBI crime
laboratory, testified at trial that she extracted DNA from the appellant’s blood samples and obtained
a DNA profile. She compared the appellant’s DNA profile with the unknown profile obtained from
the victim’s rape kit. Debnam “found that [the appellant’s] profile was the same as what was inside
the kit.” Debnam testified that the statistical probability of another individual having the same
profile as the appellant was one in eighty-six trillion.

        Sergeant Kenneth D. Phillips with the Chattanooga Police Department’s Automated
Fingerprint Identification Section testified that upon the request of the State, he returned to the crime
scene to determine whether the window screen could have been removed from outside the apartment.
Sergeant Phillips related that, although the screen was designed to be removed from the inside, he
was able to remove it from outside the townhouse by inserting his fingernails under the screen,


                                                  -3-
lifting the screen, and pulling it out. Sergeant Phillips did not use a screwdriver to remove the
screen.

        The appellant’s grandmother and mother testified on behalf of the appellant at trial. Mary
Alice Slaven, the appellant’s seventy-three-year-old grandmother, testified that the appellant lived
with her at the time of the offenses. Slaven recalled that on the evening of February 25, 2000, the
appellant returned home from work, watched television, and fell asleep on the recliner in the living
room. The next morning, she and the appellant went to church to have their photographs taken.
According to Slaven, the appellant did not leave the house during the night. She explained that she
was a light sleeper, and she had slept on the couch in the living room that night. She insisted that
she would have awakened if the appellant had started his truck, which was parked near the house.

        Diane Johnson, the appellant’s mother, testified that at the time of the offenses the appellant
was separated from his wife and was living with his grandmother. Johnson stated that she had
telephoned Mrs. Slaven’s house on the morning of February 26, 2000, to tell the appellant to shave
for the photographs. Johnson identified the photographs taken that day and the receipt for the
photographs, which she had dated February 26, 2000. She testified that the photograph of the
appellant represented the way the appellant appeared on that date. The photograph reflected that the
appellant had a moustache and a receding hairline. Johnson admitted that she did not know where
the appellant was at 5:30 a.m. on the morning of the offenses.

        Based upon the foregoing testimony, the jury convicted the appellant of four counts of
aggravated rape and one count of aggravated burglary. Following a hearing, the trial court sentenced
the appellant to twenty-five years incarceration for each of the aggravated rape convictions and four
years incarceration for the aggravated burglary conviction. The trial court ordered that one of the
sentences for aggravated rape and the sentence for aggravated burglary be served consecutively to
the remaining sentences, for a total effective sentence of fifty-four years incarceration. The appellant
now brings this appeal.

                                             II. Analysis

                                  A. Photographs of the Appellant

        The appellant first contends that the trial court erred by admitting into evidence three
photographs of the appellant taken on different dates. Specifically, the appellant asserts that the two
photographs taken eight and fourteen months after the alleged offenses were not relevant. The
appellant argues that, even if relevant, the photographs were prejudicial because they were “mug
shots,” suggesting prior and subsequent criminal activity. The State maintains that the photographs
were relevant to establish that the appellant’s appearance matched the description provided by the
victim. The State further maintains that the photographs did not appear to be mug shots; thus, the
probative value of the photographs was not outweighed by the danger of unfair prejudice. We agree
with the State.



                                                  -4-
         In the instant case, the victim was unable to positively identify her assailant. However, at
trial, she testified regarding certain physical features of her assailant, including a receding hairline
and a moustache. In order to demonstrate that the victim’s inability to identify the appellant may
have been due to the appellant’s changing appearance, the State sought to introduce three
photographs of the appellant “taken closer in time . . . to the offense.” The photographs, which were
booking photographs taken September 14, 1999, November 8, 2000, and May 13, 2001, depict the
appellant with various styles of hair and facial hair.1

        The appellant did not object to the introduction of the photograph taken on September 14,
1999, five months prior to the incident. Defense counsel argued that the two remaining photographs
were irrelevant, and the State had other evidence of identification in the form of fingerprints and
DNA. However, the trial court found that the three photographs were relevant and admissible to
demonstrate the appellant’s loss of hair. Defense counsel then argued that the probative value of the
photographs was outweighed by the prejudicial effect. The trial court disagreed, finding that “none
of the pictures look like jail pictures. They just look like pictures.” The trial court admitted the
photographs, stating that the jury “need[ed] to see the pictures of [the appellant] during the time
before and after February [26, 2000.]”

         The decision regarding the admissibility of photographs lies within the sound discretion of
the trial court, and that ruling will not be overturned on appeal absent a showing of an abuse of that
discretion. State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978). In order to be admitted as evidence,
a photograph must be relevant to an issue at trial. Tenn. R. Evid. 402; State v. Braden, 867 S.W.2d
750, 758 (Tenn. Crim. App. 1993). However, relevant photographs may be excluded if their
probative value is substantially outweighed by the danger of unfair prejudice to the defendant. Tenn.
R. Evid. 403; Banks, 564 S.W.2d at 951.

        Upon our review of the photographs in question, we agree that the photographs were relevant
to show that the appellant had a receding hairline and, at times, a moustache, features matching the
victim’s description of her assailant. We further conclude that the probative value of the
photographs was not substantially outweighed by the danger of unfair prejudice to the appellant.
Although the introduction into evidence of mug shots of an accused may lead a jury to infer that the
accused has engaged in previous criminal activity, “mug shots alone are not sufficient to cause such
inference.” State v. Washington, 658 S.W.2d 144, 146 (Tenn. Crim. App. 1983) (citing United
States v. Calarco, 424 F.2d 657 (2d Cir. 1970)). Moreover, the photographs in question would not
have led the jury to infer prior or subsequent criminal behavior. Other than an unsmiling appellant,
nothing in the photographs suggests that they are mug shots. Accordingly, we conclude that the trial
court did not abuse its discretion by admitting the photographs into evidence. This issue is without
merit.



        1
          In the photograph taken on September 14, 1999, the appellant had a moustache. In the photograph taken on
November 8, 2000, the appellant had a “scruffy” beard and moustache. In the photograph taken on May 13, 2001, the
appellant had a moustache and a “goatee.”

                                                       -5-
          B. Replaying of the Direct Testimony of the Victim During Jury Deliberation

        Next, the appellant contends that the trial court erred by replaying only the direct testimony
of the victim for the jury during deliberations. This court has previously concluded that the decision
to grant a jury’s request to rehear or review evidence rests within the sound discretion of the trial
court as limited by Standard 15-4.2 of the ABA Standards for Criminal Justice: Trial by Jury (2d ed.
1980). State v. Jenkins, 845 S.W.2d 787, 793 (Tenn. Crim. App. 1992). Standard 15-4.2 provided:

               (a) If the jury, after retiring for deliberation, requests a review of
               certain testimony or other evidence, they shall be conducted to the
               courtroom. Whenever the jury’s request is reasonable, the court, after
               notice to the prosecutor and counsel for the defense, shall have the
               requested parts of the testimony read to the jury and shall permit the
               jury to reexamine the requested materials admitted into evidence.

               (b) The court need not submit evidence to the jury for review beyond
               that specifically requested by the jury, but in its discretion the court
               may also have the jury review other evidence relating to the same
               factual issue so as not to give undue prominence to the evidence
               requested.

This court concluded that under Standard 15-4.2, “the trial court would have the discretion to take
such action as necessary, including denying the jury’s request, to insure that the jury’s determination
of a factual issue would not be distorted by undue emphasis on particular evidence.” Jenkins, 845
S.W.2d at 793.

       Standard 15-4.2 has since been revised and redesignated as Standard 15-5.2, which provides:

               (a) If the jury, after retiring for deliberation, requests a review of
               certain testimony the court should notify the prosecutor and counsel
               for the defense, and allow all parties to be heard on the jury’s request.
               Unless the court decides that a review of requested testimony is
               inappropriate, the court should have the requested parts of the
               testimony submitted to the jury in the courtroom. The court may
               permit testimony to be reread outside the presence of counsel, with
               the personal waiver of the defendant and the stipulation of the parties.

               (b) The court need not submit testimony to the jury for review beyond
               that specifically requested by the jury, but in its discretion the court
               may also have the jury review other testimony relating to the same
               factual issue so as not to give undue prominence to the testimony
               requested.



                                                 -6-
ABA Standards for Criminal Justice: Trial by Jury, Standard 15-5.2 (3d ed. 1996).

        Revised Standard 15-5.2 refers only to a jury’s request to rehear testimony, not review
evidence. However, in 1995, Rule 30.1 was added to the Tennessee Rules of Criminal Procedure
and provides that “[u]pon retiring to consider its verdict the jury shall take to the jury room all
exhibits and writings which have been received in evidence, except depositions, for their
examination during deliberations, unless the court, for good cause, determines that an exhibit should
not be taken to the jury room.” Tenn. R. Crim. P. 30.1. “This rule change[d] the long-standing
practice in Tennessee of not allowing the jury in criminal cases to take the exhibits to the jury room
for their study and examination during deliberations.” Tenn. R. Crim. P. 30.1, Advisory
Commission Comments. Rule 30.1 is mandatory unless the trial court, either upon motion or sua
sponte, determines that an exhibit should not be submitted to the jury. Id.

        Revised Standard 15-5.2 also provides that the parties are to be notified of the jury’s request
to rehear testimony and afforded the opportunity to be heard on the matter. ABA Standards for
Criminal Justice: Trial by Jury, Standard 15-5.2(a) (3d ed. 1996). Moreover, unlike the former
standard, revised Standard 15-5.2 provides that the requested testimony may be reread to the jury
outside the presence of counsel upon “the personal waiver of the defendant and the stipulation of the
parties.” Id. Nevertheless, under the revised standard, the trial court retains its authority to take the
action necessary to ensure that the jury does not afford the requested testimony any undue emphasis.
In view of the revisions to Standard 15-4.2 and the addition of Rule 30.1 of the Tennessee Rules of
Criminal Procedure, we conclude that revised Standard 15-5.2 should be the standard to be applied
by a trial court responding to a jury’s request to rehear trial testimony.

        In the instant case, after retiring to deliberate, the jury requested a transcript of the victim’s
testimony. Because a transcript had not yet been prepared, the trial court agreed, over defense
counsel’s objection, to allow the jury to listen in open court to a recording of the victim’s testimony.
The trial court noted that the jury would be permitted to hear cross-examination, as well as the
victim’s direct testimony. Prior to playing the recording of the victim’s testimony, the trial court
instructed the jurors that they were not to give any undue weight to the victim’s testimony and were
to consider it along with the testimony of the other witnesses. The victim’s testimony was then
played for the jury.

        When the recording reached the point in the victim’s direct testimony at which the trial court
had held a jury-out hearing, the trial court stopped the recording in order to forward to the point
where the victim’s testimony resumed. However, the jury informed the trial court that they had
heard all they needed to hear. When the trial court asked the attorneys to approach the bench,
defense counsel stated, “I’m not sure how to respond, Your Honor. First they want to hear it, . . . but
now they don’t want to hear the cross examination. I think I need just a moment to think about it.”
While defense counsel considered the issue, the trial court allowed the jury to resume their
deliberations.




                                                   -7-
         On appeal, the appellant contends that by allowing the jury to listen to only the victim’s direct
testimony and not cross-examination, the trial court gave the direct testimony of the victim undue
prominence. The State submits that the appellant waived this issue by failing to request that the jury
be required to listen to the victim’s testimony in its entirety. However, the State also maintains that
the trial court properly played the portion of the victim’s testimony requested by the jury. Because
we are unable to determine whether the appellant properly objected to the playing of only a portion
of the victim’s testimony, we will address the issue on the merits.

        We conclude that the trial court did not abuse its discretion by allowing the jury to rehear
only a portion of the victim’s testimony. When the trial court stopped the recording at the jury-out
hearing, the jurors advised the trial court that they had heard the testimony necessary to resume their
deliberations. Standard 15-5.2(b) provides that the trial court “need not submit testimony to the jury
for review beyond that specifically requested by the jury . . . .” ABA Standards for Criminal Justice:
Trial by Jury, Standard 15-5.2(b) (3d ed. 1996). Moreover, this court has previously concluded that
a jury may rehear portions of a witness’s testimony. See State v. Frank Gaitor, No. E2001-02531-
CCA-R3-CD, 2002 WL 31863299, at *12 (Tenn. Crim. App. at Knoxville, Dec. 23, 2002), perm.
to appeal denied (Tenn. May 27, 2003); State v. Steven Radley, No. 01C01-9311-CC-00382, 1994
WL 377212, at *3 (Tenn. Crim. App. at Nashville, July 14, 1994). In any event, the appellant has
failed to demonstrate that the jury afforded the victim’s direct testimony undue prominence or that
he was prejudiced by the failure of the jury to hear the victim’s testimony in its entirety. This issue
is without merit.

                                       C. Motion for a Mistrial

         Finally, the appellant challenges the trial court’s denial of his motion for a mistrial.
Specifically, the appellant contends that local media reports portrayed the appellant as a serial rapist.
The appellant argues that this extraneous prejudicial information was imparted to one or more of the
jurors, thereby necessitating a mistrial. The State maintains that the trial court properly denied the
appellant’s motion.

        A mistrial should be declared in criminal cases only in the event that a manifest necessity
requires such action. State v. Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim. App. 1991). In other
words, a mistrial is an appropriate remedy when a trial court cannot continue without causing a
miscarriage of justice. State v. McPherson, 882 S.W.2d 365, 370 (Tenn. Crim. App. 1994). The
decision to grant a mistrial lies within the sound discretion of the trial court and that decision will
not be overturned on appeal absent a clear abuse of that discretion. State v. Hall, 976 S.W.2d 121,
147 (Tenn. 1998) (citing State v. Adkins, 786 S.W.2d 642, 644 (Tenn. 1990)). The burden of
establishing the necessity for a mistrial lies with the party seeking it. State v. Williams, 929 S.W.2d
385, 388 (Tenn. Crim. App. 1996).

        In the instant case, the jury was not sequestered. The record reflects that on the afternoon of
November 14, 2002, the trial court charged the jury and then adjourned court, permitting the jury to
begin their deliberations the following morning. Prior to adjournment, the trial court instructed the


                                                   -8-
jury to refrain from discussing the case, watching the news, or reading the newspapers. That
evening, a local news broadcast noted the appellant’s prior convictions, allegedly portraying the
appellant as a serial rapist. The next morning, defense counsel advised the trial court of the news
broadcast and asked the trial court to voir dire the jurors individually. The trial court agreed to
individually question all thirteen jurors.

        While none of the jurors had watched the local television news the previous evening, several
of the jurors had overheard other jurors mention hearing about the trial on the radio that morning.
Jurors McDermott, Whitmire, G. Blaylock, and Frost stated that Juror McKenzie had announced that
he heard a report about the appellant’s trial on the radio. Jurors Frost and Bates said that Juror P.
Blaylock claimed that she had also heard a report about the appellant’s trial on the radio that
morning. The jurors related that neither Juror P. Blaylock nor Juror McKenzie discussed what they
had heard regarding the appellant or his trial.

        Three jurors conceded that they had heard reports about the appellant’s trial on the radio that
morning. Juror Pascua stated that he was listening to the radio at home when it was announced that
the jury deliberations were beginning. He said that he did not hear any facts about the case and
walked away when he realized it was news of the appellant’s trial. Juror P. Blaylock stated that the
news was on when she turned on her car radio, so she turned the radio off. She related, however,
that Juror McKenzie had announced that he heard a radio report about the appellant’s trial. Upon
questioning by the trial court, Juror McKenzie confirmed that he told the other jurors that he had
heard a radio report about the appellant and his trial. However, he claimed that he did not discuss
“the specifics” with the other jurors. When asked what he heard on the radio, he stated, “I guess I
heard probably enough to, you know, to – it probably wouldn’t change my decision, but I did hear
enough probably that I didn’t know already.” Juror McKenzie stated that he learned that the
appellant had previously been accused of rape.

        At the conclusion of the voir dire, defense counsel moved for a mistrial. The trial court
agreed to excuse Juror McKenzie, but denied the motion for a mistrial, finding that the remaining
jurors had not been “poisoned.” To ensure that the jurors remaining on the panel had not been
prejudiced, the trial court questioned them as a group prior to their deliberation. All twelve jurors
responded that Juror McKenzie had not discussed what he heard on the radio. The jury then retired
to begin their deliberations.

         When extraneous prejudicial information or any outside influence is brought to bear on a
juror, the validity of the verdict is questionable. State v. Parchman, 973 S.W.2d 607, 612 (Tenn.
Crim. App. 1997). Rule 606(b) of the Tennessee Rules of Evidence provides:

               Upon an inquiry into the validity of a verdict or indictment, a juror
               may not testify as to any matter or statement occurring during the
               course of the jury’s deliberations or to the effect of anything upon any
               juror’s mind or emotions as influencing that juror to assent to or
               dissent from the verdict or indictment or concerning the juror’s


                                                 -9-
                mental processes, except that a juror may testify on the question of
                whether extraneous prejudicial information was improperly brought
                to the jury’s attention, whether any outside influence was improperly
                brought to bear upon any juror, or whether the jurors agreed in
                advance to be bound by a quotient or gambling verdict without further
                discussion; nor may a juror’s affidavit or evidence of any statement
                by the juror concerning a matter about which the juror would be
                precluded from testifying be received for these purposes.

“Extraneous information” is information from a source outside the jury. Tony Carruthers v. State,
No. W2002-02852-CCA-R7-PD, 2003 WL 22272425, at *5 (Tenn. Crim. App. at Jackson, May 6,
2003) (citing Caldararo v. Vanderbilt University, 794 S.W.2d 738, 742 (Tenn. Ct. App. 1990)).
External influences which could warrant a new trial if found to be prejudicial include: (1) exposure
to news items about the trial; (2) consideration of facts not admitted in evidence; and (3)
communications with non-jurors about the case. Id.

         In the instant case, the appellant asserts that “[i]t is clear from the questioning of the jurors
that extraneous prejudicial information was imported to one or more jurors regarding the criminal
history of the [appellant].” We disagree. Jurors P. Blaylock and Pascua conceded that they heard
news reports on the radio about the appellant’s trial, but claimed that they either walked away or
turned off the radio, hearing only that jury deliberations were beginning that morning. Juror
McKenzie conceded that he heard on the radio that the appellant had previously been accused of
rape. He also admitted telling the other jurors that he heard reports on the radio about the appellant
and the trial. However, he denied telling the other jurors “the specifics” of what he heard. The
jurors confirmed this. Nevertheless, the trial court excused Juror McKenzie from serving on the jury
in the instant case. We conclude that the appellant has failed to show that the remaining jurors were
prejudiced as a result of information disclosed by Juror McKenzie. Accordingly, the trial court
properly denied the appellant’s motion for a mistrial.

                                           III. Conclusion

        Finding no reversible error, we affirm the judgments of the trial court.




                                                         ___________________________________
                                                         NORMA McGEE OGLE, JUDGE




                                                  -10-
