        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs November 10, 2011

           STATE OF TENNESSEE v. WILLIAM DARELLE SMITH

             Direct Appeal from the Criminal Court for Davidson County
                      No. 2007-C-2675     Seth Norman, Judge


                 No. M2010-01384-CCA-R3-CD - Filed March 2, 2012


T HOMAS T. W OODALL, J., concurring.

       I concur in Judge Wedemeyer’s opinion. I write separately to express my concern of
how the trial court dealt with the issue of a juror’s communication with the witness Dr. Adele
Lewis. The appellate record indicates that when the fact of the communication was made
known to the trial court, there was no discussion of the matter on the record. Any instructions
to the jury concerning appropriate juror conduct during the trial are not included in the
transcripts, although the jury voir dire was added in a supplement to the record. Direct
communication by a juror to a witness during the course of a trial in the nature of the
“Facebook” message in this case could never be considered appropriate.

        Further disturbing is the implication in the communication that both the witness and
the juror understood that the communication was improper; in addition, the option of a cover
up is also alluded to.

       At a minimum, the juror and the witness should have both been summoned before the
trial court and examined under oath concerning the possibility of any other similar
communication during the trial, and to be admonished in open court for their improper
conduct. In this case there is nothing apparent in the record to indicate Defendant is entitled
to a new trial based upon the highly improper conduct of the juror and the witness. Also,
Defendant did not move for a mistrial when the communication was made known to the trial
court and the parties. Courts must be vigilant to insure that there is never “prejudice to the
judicial process,” Tennessee Rule of Appellate Procedure 36(b), caused by improper
communications from or to jurors during the course of a trial.

                                                   ___________________________________
                                                   THOMAS T. WOODALL, JUDGE
