State v. Thomas

• Decision Date: 22 April 1991
• Docket Number: No. 01-S-01-9010CR-00084,01-S-01-9010CR-00084
• Citation: 813 S.W.2d 395
• Parties: STATE of Tennessee, Appellant, v. Jerry Wayne THOMAS, Appellee. 813 S.W.2d 395
• Court: Tennessee Supreme Court

Page 395

813 S.W.2d 395

STATE of Tennessee, Appellant, v. Jerry Wayne THOMAS, Appellee.

No. 01-S-01-9010CR-00084.

813 S.W.2d 395

Supreme Court of Tennessee at Nashville.

April 22, 1991.

Debra K. Inglis, Asst. Atty. Gen., Charles W. Burson, Atty. Gen. & Reporter, Nashville, for plaintiff-appellant.

Jeffrey A. DeVasher, Rebecca Freeman, John Herbison, Paul Morrow, Jr., for defendant-appellee.

OPINION

REID, Chief Justice.

Application for permission to appeal was granted in this case to review the State's contention that the Court of Criminal Appeals erred in holding that Rule 5.04(e) of the Local Rules of Practice for Davidson County Courts, regarding post-trial communications with jurors, is unenforceable.

The issue under consideration arose after the jury in the present case was discharged. At that time defense counsel filed a motion seeking permission pursuant to Rule 5.04(e) to interview the former jurors. The local rule provides:

Once the jurors' service is completed all interviews of jurors by counsel, litigants, or their agents, are prohibited except with the permission of the trial court, and then only in such situations as are deemed appropriate.

The trial court denied the motion. On appeal the Court of Criminal Appeals determined that the local rule violates Supreme Court Rule 8, EC 7-29, which states:

To safeguard the impartiality that is essential to the judicial process, veniremen and jurors should be protected against extraneous influences. When impartiality is present, public confidence in the judicial system is enhanced. There should be no extrajudicial communication with veniremen prior to trial or with jurors during trial by or on behalf of a lawyer connected with the case. Furthermore, a lawyer who is not connected with the case should not communicate with or cause another to communicate with a venireman or a juror about the case. After the trial, communication by a lawyer with jurors is permitted so long as he refrains from asking questions or making comments that tend to harass or embarrass the juror or to influence actions of the juror in future cases. Were a lawyer to be prohibited from communicating after trial with a juror, he could not ascertain if the verdict might be subject to legal challenge, in which event the invalidity of a verdict might go undetected. When an extra-judicial communication by a lawyer with a juror is permitted by law, it should be made considerately and with deference to the personal feelings of the juror.

See also DR 7-108(D).

Contending that the decision of the Court of Criminal Appeals is based upon erroneous interpretations of the local rule and the Rule of this Court, the State insists the local rule restricts only the conduct of lawyers and parties in the case and does not prohibit juror initiated contacts. The State further insists that, even though Rule 8 approves communications with former jurors by lawyers and litigants, the Rule does not prohibit a requirement that lawyers and litigants have the trial court's permission before engaging in such communications. The State then argues that the better-reasoned state and federal decisions support the local rule, which, consequently, should be approved by this Court. See, e.g., United States v. Kepreos, 759 F.2d 961, 967-968 (1st Cir.1985); Wilkerson v. Johnson, 699 F.2d 325, 330 (6th Cir.1983); United States v. Brasco, 516 F.2d 816, 819 n. 4 (2d Cir.1975); State Department of Transportation v. Rejrat, 540 So.2d 911 (Fla.App.1989); Commonwealth v. Solis, 407 Mass. 398, 553 N.E.2d 938, 941-942 (1990); Commonwealth v. Fidler, 377 Mass. 192, 385 N.E.2d 513, 519-520 (1979).

The defendant-appellee takes the position that the local rule violates Rule 8 and refers to cases which support this position. See Elisovsky v. State, 592 P.2d 1221, 1227-1229 (Alas.1979); State v. Blocker, 211 Kan. 185, 505 P.2d 1099, 1109 (1973). He further contends that the local rule is an impermissible restraint on free speech protected by Art. I, Sec. 19 of the Constitution of Tennessee and the First Amendment to the United States Constitution.

The requirement of the local rule that "all interviews" with jurors by lawyers or litigants "are prohibited except with the permission of the trial court" directly conflicts with the provision of Rule 8 that "communication by a lawyer with jurors is permitted." This conflict is not avoided by the provision "when an extra judicial communication by a lawyer with a juror is permitted by law" found in the last sentence of EC 7-29.

EC 7-29 and DR 7-108(D) of Rule 8 express the view that after trial it is not improper for a lawyer to communicate with jurors so long as the limitations of Rule 8 are observed. See Elisovsky v. State, 592 P.2d at 1228-1229. Any further limitation on this right to interview former jurors must be accomplished by amendment to the Rule. As this Court stated in Barger v. Brock, 535 S.W.2d 337, 342 (Tenn.1976), quoting from Soft Water Utilities, Inc. v. LeFevre, 159 Ind.App. 529, 293 N.E.2d 788, 790 (1973),

"The rules of the Supreme Court are binding on the courts as well as on litigants. No court except the Supreme Court can alter, amend or change the rules. No inferior court may circumvent the rules and thereby avoid them."

Rule 8 allows litigants and their counsel to make reasonable investigations to determine if a verdict is subject to legal challenge. The extent of the investigation is implicitly limited by the purposes stated in the Rule sanctioning post-trial communications between counsel and former jurors. Rule 606(b) of the...