State v. Bobo

• Decision Date: 08 July 1991
• Docket Number: No. 01-S-01-9005CR-00040,01-S-01-9005CR-00040
• Citation: 814 S.W.2d 353
• Parties: STATE of Tennessee, Appellee, v. Tony L. BOBO and Cecil C. Johnson, Appellants. 814 S.W.2d 353
• Court: Tennessee Supreme Court

Page 353

814 S.W.2d 353

STATE of Tennessee, Appellee, v. Tony L. BOBO and Cecil C. Johnson, Appellants.

No. 01-S-01-9005CR-00040.

814 S.W.2d 353

Supreme Court of Tennessee at Nashville.

July 8, 1991.

Edward J. Gross, Nashville, for appellant Bobo.

Jeffrey A. DeVasher, Sr. Asst. Public Defender, Nashville, for appellant Johnson.

Charles W. Burson, Atty. Gen., and Reporter, Kimberly Lynn Anne Hattaway, Asst. Atty. Gen., for appellee.

OPINION

BEN H. CANTRELL, Special Judge, Sitting by Designation.

The defendants, Cecil Johnson and Tony Bobo, were convicted by a jury of second degree murder. The convictions were affirmed by the Court of Criminal Appeals, and we granted permission to appeal to determine whether the trial judge committed reversible error by replacing one of the regular jurors with a previously discharged alternate after deliberations had begun.

The evidence shows that the victim and both defendants were inmates on death row at the Tennessee State Penitentiary. On July 7, 1985, the victim was attacked and beaten in the exercise yard by seven other inmates. Bobo and Johnson participated in the attack and repeatedly dropped two thirty-five pound dumbbells on the victim's head and chest. The medical examiner determined that a blunt trauma to the head caused the victim's death.

Bobo and Johnson were charged with first degree murder and tried together before the same jury. At the close of all proof, the trial judge instructed the jury and discharged the alternates. Approximately one hour after the jury retired to deliberate, the court learned that one of the jurors had made improper statements to the panel. The juror, Selena Coleman, had speculated that Johnson was the man who killed her twelve-year-old cousin ten years earlier. When examined by the court and counsel, Ms. Coleman stated that she revealed her concerns to the entire jury panel and the matter was discussed for some five minutes. Thereafter, the court questioned Johnson and he stated that he wanted Ms. Coleman replaced and the other jurors questioned about the matter. Although the defendant indicated that he would be satisfied with the replacement of Ms. Coleman if the effect of her statement was minimal or nothing, Johnson's counsel reserved the right to move for a mistrial. Neither Bobo nor his attorney were asked about the matter.

Each of the remaining jurors was questioned individually about the incident. All eleven stated that they could put the matter out of their mind and would not consider the statement any further in their deliberations. After the remaining jurors were questioned, counsel for Johnson moved for a mistrial. The trial court overruled the motion and excused Ms. Coleman from jury service. The first of the two alternates, who had been discharged for an hour and a half, was located at her place of employment and asked to return to court. The trial judge questioned the alternate at length and, having determined that she had not been prejudiced by anything that occurred during the interim, she was reminded of her oath and reseated on the jury. The jury returned to their deliberations without being recharged or instructed to begin their deliberations anew. One hour and twenty minutes later, the jury returned a verdict finding both defendants guilty of second degree murder.

I.

In affirming the convictions, the Court of Criminal Appeals found that the trial court had no power to replace the juror once deliberations began, but that any error was harmless beyond a reasonable doubt. The majority determined that the error was procedural in nature, relying on Tenn.R.Crim.P. 24(e)(1), which provides:

(e) Alternate Jurors. The trial court in its discretion may use either of the following methods to select alternate jurors:

(1) The court may direct that one to four jurors in addition to the regular jury be called and impanelled to sit as alternate jurors. Alternate jurors, in the order in which they are selected, shall replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable or disqualified to perform their duties. Alternate jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges, shall take the same oath, and shall have the same functions, powers, facilities, and privileges as the regular jurors. An alternate juror who does not replace a regular juror shall be discharged when the jury retires to consider its verdict. For each alternate juror to be selected, each side is entitled to one peremptory challenge for each defendant. The additional peremptory challenges may be used only as each alternate juror is selected, and the other peremptory challenges allowed by this rule may not be used against an alternate juror. (Emphasis added.)

The majority went on to hold that the defendants were not prejudiced by this procedural error since there is no reasonable probability that a more favorable verdict would have been returned had a mistrial been declared, an entirely new jury impaneled, and a new trial held.

As pointed out by the Court of Criminal Appeals, the procedure used in this case clearly violates Rule 24(e)(1). That rule provides only for the replacement of a juror who becomes disqualified prior to deliberations, and states that any alternate not replacing a regular juror shall be discharged when the jury retires to consider its verdict. At that point, the discharged alternate is no longer a member of the jury since the function of an alternate juror ceases when the case has been finally submitted. See Patten v. State, 221 Tenn. 337, 426 S.W.2d 503 (1967).

When the trial court determined that Ms. Coleman was no longer qualified to serve on this jury, and we fully concur with that conclusion, there were only two options available. One course of action would have been to summon another juror and, after giving the defendants their full number of peremptory challenges, impanel the new juror and try the case de novo. Tenn.Code Ann. Sec. 22-2-312; See also Garner v. State, 13 Tenn. (5 Yerg.) 160 (1833). The only other available option would have been to discharge the entire panel, declare a mistrial, and continue the cause. State v. Curtis, 24 Tenn. (5 Humph.) 601 (1845); Snowden v. State, 66 Tenn. (7 Baxt.) 482 (1874); Manning v. State, 155 Tenn. 266, 292 S.W. 451 (1926). The choice of which option to pursue lies within the sound discretion of the trial court. DeBerry v. State, 99 Tenn. 207, 42 S.W. 31 (1897). Thus, the replacement of a regular juror who is found to be disqualified with a previously discharged alternate is, as the Court of Criminal Appeals found, clearly a violation of our statutory guidelines and rules of criminal procedure.

But the error committed by the court below reaches past the statutory and procedural framework of our criminal justice system and encroaches upon certain basic constitutional guaranties. Under Article I, Sec. 6 of our constitution, the right of trial by jury must be preserved inviolate. This means that it must be preserved as it existed at common law at the time of formation of the constitution. Grooms v. State, 221 Tenn. 243, 426 S.W.2d 176 (1968); Woods v. State, 130 Tenn. 100, 169 S.W. 558 (1914). Among the essentials of the right to trial by jury is the right guaranteed to every litigant in jury cases to have the facts involved tried and determined by twelve jurors. Willard v. State, 174 Tenn. 642, 130 S.W.2d 99 (1939). Similarly, a litigant has the constitutional right to have all issues of fact submitted to the same jury at the same time. Harbison v. Briggs Bros. Paint Mfg. Co., 209 Tenn. 534, 354 S.W.2d 464 (1961); Winters v. Floyd, 51 Tenn.App. 298, 367 S.W.2d 288 (1962).

We cannot say that the defendants in this case were afforded these essential elements of their constitutional right to trial by jury. It is clear that thirteen jurors participated in the deliberative process, although only twelve ultimately cast a vote on the issue of guilt or innocence. Moreover, it is not at all certain that the alternate juror who replaced Ms. Coleman took part in all the deliberations. It may be that deliberations began anew once the alternate was reseated. But without an explicit instruction to that effect from the trial judge, we cannot assume that the reconstituted jury panel started from the beginning. Thus, the substitution of jurors after final submission of the case, coupled with the trial court's failure to instruct the jury to begin deliberations anew, violated each defendant's right to a trial by jury under Article I, Sec. 6 of the Tennessee Constitution.

II.

We turn now to the question of whether the error committed in the trial court may be considered harmless. At the outset, we concede that the evidence against these defendants was overwhelming. But, the question is whether the harmless error analysis may be applied when the error adversely affects such a basic constitutional right as trial by a common law jury.

In Briggs v. State, 207 Tenn. 253, 338 S.W.2d 625 (1960), the court indicated that if an error concerned the violation of the accused's constitutional rights, it could never be held harmless. But more recent decisions have allowed the use of the harmless error rule in such instances, provided the error was found to be harmless beyond a reasonable doubt. State v. Boles, 598 S.W.2d 821 (Tenn.Crim.App.1980); Rippy v. State, 550 S.W.2d 636 (Tenn.1977). These cases follow the reasoning of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), that there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may be deemed harmless, not requiring the automatic reversal of the conviction. Id. at 22, 87 S.Ct. at 827.

Using this reasoning, it has been held that admitting evidence in violation of the constitutional protection against unreasonable...