Walsh v. State
| Decision Date | 24 June 2005 |
| Parties | Robert D. WALSH v. STATE of Tennessee. |
| Court | Tennessee Supreme Court |
C. Michael Robbins, Memphis, Tennessee, for the appellant, Robert D. Walsh.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Elizabeth T. Ryan, Assistant Attorney General, for the appellee, State of Tennessee.
WILLIAM M. BARKER, J., delivered the opinion of the court in which FRANK F. DROWOTA, III, C.J., and E. RILEY ANDERSON, ADOLPHO A. BIRCH, Jr., and JANICE M. HOLDER, JJ., joined.
This case comes before us on appeal from a denial of post-conviction relief. The petitioner sought relief from his conviction for aggravated sexual battery, raising several claims including that he was denied his right to a fair and impartial jury trial because of an improper communication by a court officer to the jury during deliberations. During the hearing on the post-conviction petition, the court heard testimony from a juror regarding the content of the communication and also the subjective effect of the officer's statement upon the juror. At the close of the hearing, the trial court found that the improper communication had not influenced the verdict and therefore denied the petition for post-conviction relief. Upon review, the Court of Criminal Appeals affirmed. In this Court, the petitioner challenges admission of the juror's testimony relating to the effect of the court officer's statement on the juror. After thorough consideration, we reverse the Court of Criminal Appeals. We hold that Tennessee Rule of Evidence 606(b) prohibits introduction of juror testimony concerning the effect on the juror of an improper communication by a court officer during jury deliberations.
In 1998, the petitioner was indicted in Shelby County on charges of aggravated sexual battery and rape of a child. A criminal court jury found the petitioner guilty of aggravated sexual battery, but not guilty of rape. The trial court sentenced the petitioner to a term of ten years imprisonment. Upon appeal, the Court of Criminal Appeals affirmed the conviction, but modified the sentence to allow the petitioner to be eligible for release after serving thirty percent of his sentence, rather than one-hundred percent as ordered by the trial court. See State v. Robert D. Walsh, W1999-01473-CCA-R3-CD, 2001 WL 91949 (Tenn.Crim.App. Jan.30, 2001). The petitioner was denied permission to appeal the conviction in this Court.
In June 2002 the petitioner filed a petition for post-conviction relief, alleging, among other things, that he had been denied his right to a fair and impartial jury trial due to an improper communication to the jury by a deputy sheriff who was acting as a court officer. At a hearing on the petition on May 2, 2003, one of the witnesses called to testify was Linda Busby, who had been one of the jurors in the petitioner's trial.
Ms. Busby testified that at one point during deliberations, she and the other jurors had voted unanimously to find the petitioner not guilty of rape of a child. However, the vote on the charge of aggravated sexual battery had been divided, with eleven jurors voting guilty and one voting not guilty. Ms. Busby was the lone dissenting vote.
Sometime after this vote was taken, a court officer entered the jury room and was told by one of the other jurors that the jury could not reach a decision on one of the charges. Then, according to Ms. Busby, the court officer made a statement to the effect that the jury was required to make a decision. Although Ms. Busby could not recall the officer's exact words, she testified that he Ms. Busby was convinced that the other members of the jury also heard the officer's remark. After this exchange with the court officer, another ballot was taken, and the jury returned a unanimous verdict of guilty on the charge of aggravated sexual battery.
On cross-examination, the State asked Ms. Busby a series of questions touching upon the effect of the officer's statement upon her deliberations. Pertinent portions of this cross-examination were as follows:
Q (by the State): This motion that's pending before Judge Bennett right now indicates that because of what this deputy said that you, Ms. Busby, changed your vote from not guilty to guilty.
A (by Ms. Busby): It was not because of what he said. I mean, it made me realize that I did have to make a decision. But, I made the decision to change my vote, I believe, because I'm obviously not a very self-confident person. And, I felt that if eleven other people felt he was guilty, I thought it was something wrong with me that I couldn't see that.
....
Neither the court officer nor any of the other jurors were called to testify about these events. Therefore, based upon Ms. Busby's testimony, the court found that an improper communication had been made to the jury, but that this communication had not affected the verdict. Accordingly, the court denied post-conviction relief on this ground.
The petitioner appealed to the Court of Criminal Appeals which, upon review, agreed that the court officer's statement to the jury had been improper. The court also recognized that the improper communication raised a presumption of prejudice which the State was required to sufficiently rebut in order to sustain the verdict. The court was of the opinion, however, that there would be no way for the State to rebut this presumption without allowing the juror to testify about how the court officer's statement may have influenced her. Therefore, the Court of Criminal Appeals held that admission of the juror's testimony was proper and affirmed the denial of post-conviction relief. We granted permission to appeal to address whether a juror may testify about the effect on his or her deliberative process of an improper communication to the jury by a court officer during deliberations.
We first address the State's argument that the issue of improper influence on the jury has been waived by the petitioner due to his failure to raise it during his direct appeals. However, the State did not assert the defense of waiver at the post-conviction hearing; instead, the State raises it for the first time in this Court. By doing so, the State has denied the petitioner an opportunity to rebut the presumption that this issue has been waived. See Tenn.Code Ann. § 40-30-110(f) (2003) () (emphasis added). Under these circumstances, we conclude that the State's waiver argument has itself been waived. Issues not addressed in the post-conviction court will generally not be addressed on appeal. See Rickman v. State, 972 S.W.2d 687, 691 (Tenn.Crim.App.1997); see also State v. White, 635 S.W.2d 396, 397-98 (Tenn.1982) (). We conclude therefore that the State may not properly assert the issue of waiver for the first time in this Court.
We now proceed to the central issue in this case —whether the jury's verdict was tainted due to improper influence during deliberations. The parties do not dispute that the court officer made an improper statement to the jury. The dispute centers around how the post-conviction court arrived at its conclusion that the statement did not affect the verdict. The petitioner argues that allowing the State to cross-examine the juror regarding the effect of the court officer's statement impermissibly delved into the juror's internal thought processes and motivations during deliberations, thus violating Tennessee Rule of Evidence 606(b). Rule 606(b) 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 mental processes, except that a juror may testify on...
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