State v. Stephen Osborne ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
SEPTEMBER 1998 SESSION
December 21, 1998
Cecil W. Crowson
STATE OF TENNESSEE, * C.C.A. NO. 01C01-9708-CC-00327 Clerk
Appellate Court
APPELLEE, * RUTHERFORD COUNTY
VS. * Hon. J. S. Daniel, Judge
STEPHEN CARL OSBORNE, * (Driving on Revoked License and
Driving Under the Influence-4th Offense)
APPELLANT. *
For Appellant: For Appellee:
Guy R. Dotson, Jr. John Knox Walkup
102 South Maple Street Attorney General and Reporter
Murfreesboro, TN 37130 450 James Robertson Parkway
Nashville, TN 37243-0493
Lisa A. Naylor
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0493
William C. Whitesell
District Attorney General
Third Floor Judicial Bldg.
Murfreesboro, TN 37130
OPINION FILED: ____________________
AFFIRMED
GARY R. WADE, PRESIDING JUDGE
OPINION
The defendant, Stephen Carl Osborne, was convicted of operating a
motor vehicle while under the influence of an intoxicant, fourth offense, and for
operating a motor vehicle on a revoked driver's license. The trial court imposed a
sentence of eleven months and twenty-nine days for the DUI conviction, suspended
all but one hundred seventy days, and ordered the remainder to be served on
probation. The trial court imposed a consecutive six-month sentence for driving on
revoked license, ordered ten days in jail, and required the balance to be served on
probation. In this appeal of right, the defendant presents the following issues for
review:
(I) whether the trial court erred by failing to order a
mistrial after the jury was exposed to evidence of the
defendant's prior convictions; and
(II) whether the trial court erred by failing to grant a new
trial after the jury was exposed to extraneous information
during deliberations.
We affirm the judgment of the trial court.
At approximately 1:00 a.m. on April 21, 1996, Officer Don Fanning of
the Murfreesboro Police Department observed the defendant driving in an industrial
area which had minimal late-night traffic on the weekends. When Officer Fanning
noticed the defendant turning right onto a dead-end street, he drove through the
intersection, and then returned to the intersection to observe. By that time the
defendant was reapproaching the intersection. According to Officer Fanning, the
defendant failed to stop at the stop sign before turning right. Officer Fanning then
stopped the defendant's vehicle.
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Samantha Krueger, girlfriend of the defendant, stepped out of the car
first and attempted to talk with Officer Fanning. The officer asked Ms. Krueger to
step aside so that he could speak with the driver. When asked to show his driver's
license, the defendant told Officer Fanning that it had been revoked.
Officer Fanning administered a series of field sobriety tests before
determining that the defendant was driving under the influence. He also confirmed
the revoked status of the defendant's driver's license.
The defendant claimed necessity as his defense. He and Ms. Krueger
testified that he was driving because Ms. Krueger, who had been driving earlier that
evening, had become ill. When Officer Fanning stopped the vehicle, however,
neither the defendant nor Ms. Krueger made such a claim.
At trial, the State presented a video tape of the stop, the field sobriety
tests, and the arrest. A portion of the video tape included questions about prior
arrests for driving on a revoked license. The State redacted the portions of the
video that covered information about the prior arrests. During jury deliberations,
however, the jury asked to review the tape and the prosecution mistakenly included
some of the redacted portions. On the redacted portion of the videotape, the jury
heard Officer Fanning ask the defendant, "When was the last time you were
arrested for driving on revoked?" The tape was stopped before the defendant
answered. The defendant's motion for a mistrial was overruled. A short time later,
the jury returned with verdicts of guilty for driving under the influence and driving on
a revoked license.
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I
The defendant's first complaint is that the trial court erred by failing to
grant a mistrial. The defendant argues that the jury was exposed to evidence of his
prior convictions for driving on a revoked license by the question recorded on the
videotape. The state argues that the trial court correctly denied the defendant's
motion because the challenged question was not evidence of any prior convictions
and, therefore, did not require the grant of a mistrial.
The purpose of a mistrial is to correct the damage done to the judicial
process when some event has occurred which would preclude an impartial verdict.
Arnold v. State, 563 S.W.2d 792, 794 (Tenn. Crim. App. 1977). The decision
whether to grant a mistrial is within the trial court's discretion and will not be
disturbed absent an abuse of that discretion. State v. Millbrooks, 819 S.W.2d 441,
443 (Tenn. Crim. App. 1991). "Generally a mistrial will be declared in a criminal
case only when there is a 'manifest necessity' requiring such by the trial judge. Id.,
819 S.W.2d at 443. The authority to discharge a jury is to be exercised only when
there is a cogent reason or manifest necessity. Jones v. State, 403 S.W.2d 750,
754 (Tenn. 1966).
In State v. James Edward Gates, No. 01C01-9607-CR-00312, slip op.
at 7 (Tenn. Crim. App., at Nashville, Sept. 30, 1997), app. denied, (Tenn. Oct. 12,
1998), the issue before this court was whether a mistrial was required when the jury
inadvertently heard a question on audiotape that alluded to the defendant's possible
prior misconduct. Specifically, the jury heard on audiotape a detective ask the
defendant, "Juaney [Bradford] has got you in trouble before, ain't he?" Gates, slip
op. at 7. This court held that a jury hearing a question on audiotape that alluded to
the defendant's possible prior misconduct without hearing the answer did not qualify
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as a "manifest necessity" requiring mistrial. The court concluded that the trial judge
had not abused his discretion in refusing to grant a mistrial. Gates, slip op. at 7.
In this instance, the jury heard Officer Fanning's question but did not
hear the defendant's response. Furthermore, before hearing the question, the jury
was instructed by the trial judge that questions were not to be considered as
evidence. In the context of the entire record, the objectionable portion of the
videotape did not affect the results of the trial or otherwise so prejudice the judicial
process as to preclude an impartial verdict. The evidence of guilt was convincing
notwithstanding the improper question heard by the jury. It is our conclusion,
therefore, that there was no manifest necessity for the mistrial and that the trial
judge did not abuse his discretion by refusing to grant a mistrial.
II
The defendant also contends that the trial court erred by failing to
grant defendant's motion for a new trial because the jury was exposed to extraneous
information during deliberations. The defendant argues that Officer Fanning's
question affected the reliability of the verdict. The defendant also argues that
because the question was prejudicial, the burden shifts to the prosecution to
demonstrate the harmlessness of the communication with the jury.
At the motion for a new trial, the trial court found that the issue
presented is whether the jury was prejudiced by the introduction of the extraneous
information. The trial judge stated as follows:
Well here's ... and I understand your argument and it
makes an interesting issue framed for appellate review.
But as you know, we charge the jury that a question is
not evidence. That evidence is the response to the
question. And so the issue really that's raised [is: Is] this
question, which is unanswered, such a piece of
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extraneous information that the jury is prejudiced in their
deliberation.
In overruling the defendant's motion for a new trial, the trial judge made a further
observation:
But in this case, it looks like this would be the type
of case in which it would be an attack on the receipt by
the jury of extraneous information that affects their
verdict, and that verdict could be attacked by affidavit
showing that the defendant in his position was in fact
prejudiced by the question.
And I don't have anything to justify that. And
assuming that following the charge and the law, that a
question is not evidence, then I don't have anything
presented to me that would give rise to a basis to
conclude that the jury, using that extraneous information,
reached a conclusion that was inappropriate for them to
reach based on that information. So with those
comments, I'm going to overrule your motion.
The defendant and the State both cite Rule 606(b) of the Tennessee
Rules of Evidence. Rule 606(b) states that a juror may testify on the question of
whether extraneous prejudicial information was improperly brought to bear upon any
juror. Here, the defendant never presented testimony by a juror as to any
extraneous prejudicial information.
Extraneous information is information from a source outside the jury.
Caldararo v. Vanderbilt University, 794 S.W.2d 738, 742 (Tenn. App. 1990) (citing
State v. Coker, 746 S.W.2d 167, 171 (Tenn. 1987)). After proof that a juror has
been exposed to extraneous prejudicial information, there arises a rebuttable
presumption of prejudice, and the burden shifts to the prosecution to explain the
conduct or demonstrate the harmlessness of it. State v. Young, 866 S.W.2d 194,
196 (Tenn. Crim. App. 1992).
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In order to shift the burden to the prosecution to demonstrate the
harmlessness of the communication with the jury, the threshold question is whether
the statement communicated to the jury was prejudicial to the defendant. State v.
Parchman, 973 S.W.2d 607, 612 (Tenn. Crim. App. 1997). See also Young, 866
S.W.2d at 196 (trial judge was best able to assess the nature of extraneous
information, as well as its effect, if any, upon the jury).
In this instance, the jury heard Officer Fanning's question on videotape
some two hours after deliberations had begun. Although the question is suggestive
of the fact that defendant had been previously arrested for driving on a revoked
license, the jury did not hear the defendant's answer. Because the jury had been
instructed that questions alone are not evidence, it is our view that the statement
communicated to the jury was not prejudicial to the defendant. Moreover, the jury
had sufficient reason absent Officer Fanning's question to have found that the
defendant had been driving on a revoked license.
Accordingly, the judgment of the trial court is affirmed.
_____________________________
Gary R. Wade, Presiding Judge
CONCUR:
_______________________________
Thomas T. W oodall, Judge
_______________________________
James Curwood W itt, Jr., Judge
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