State v. Lloyd/Debra Ferrell ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
SEPTEMBER 1998 SESSION
FILED
November 23, 1998
Cecil Crowson, Jr.
STATE OF TENNESSEE, ) Appellate C ourt Clerk
) NO. 02C01-9708-CC-00327
Appellee, )
) HARDIN COUNTY
VS. )
) HON. C. CREED McGINLEY,
) JUDGE
LLOYD E. FERRELL and )
DEBRA L. FERRELL, )
)
Appellants. ) (Felony Murder)
FOR THE APPELLANT FOR THE APPELLEE:
LLOYD E. FERRELL:
JOHN KNOX WALKUP
VERN CHUMNEY(At Trial) Attorney General and Reporter
RFD 1, Box #374
Holladay, TN 38341 MARVIN E. CLEMENTS, JR.
Assistant Attorney General
GUY T. WILKINSON (On Appeal) Cordell Hull Building, 2nd Floor
District Public Defender 425 Fifth Avenue North
Nashville, TN 37243-0493
VICKI S. SNYDER (On Appeal)
Assistant District Public Defender G. ROBERT RADFORD
117 North Forrest Avenue District Attorney General
Camden, TN 38320
JOHN W. OVERTON
FOR THE APPELLANT Assistant District Attorney General
DEBRA L. FERRELL: P. O. Box 484
Savannah, TN 38372 - 0484
JAMES BROCKMAN (At Trial)
P. O. Box 25
Parsons, TN 38363
ROBERT C. BROOKS (On Appeal)
707 Adams Avenue
Memphis, TN 38105
OPINION FILED: ______________
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
The defendants, Lloyd E. Ferrell and Debra L. Ferrell, were convicted by a
Hardin County jury of the offense of felony murder. Both were sentenced to life
imprisonment. They present the following common issues in this appeal:
1. whether the evidence was sufficient to support the guilty
verdict;
2. whether the trial court erred in admitting taped
conversations between Debra Ferrell and a third party;
3. whether the trial court erred in refusing to grant a
severance of the defendants;
4. whether the trial court erred in disallowing into evidence
certain taped conversations by each defendant;
5. whether the prosecuting attorney engaged in improper
closing argument; and
6. whether the trial court erred in dismissing a juror during
trial.
In addition, Debra Ferrell presents two other issues for our review; namely, (1)
whether trial counsel was ineffective for failing to pursue a motion to suppress the
taped conversations, and (2) whether the trial court erred in denying a new trial on
the basis of newly discovered evidence. After a careful review of the record and
applicable law, we conclude the judgments should be AFFIRMED as to both
defendants.
FACTS
The defendants were married. Prior to March 27, 1996, co-defendant Jason
Kimberland1 and his girlfriend, Stacye Shands, went to the Ferrells’ residence.
Lloyd Ferrell asked Kimberland if he wanted to make some easy money by robbing
an elderly couple. Lloyd suggested the amount in the residence of the elderly
1
Jason Kimberland was tried separately. His felony murder conviction and sentence
of life imprisonment were recently affirmed by this Court. State v. Jason W. Kimberland,
C.C.A. No. 02C01-9711-CC-00447, Hardin County (Tenn. Crim. App. filed July 10, 1998,
at Jackson).
2
couple was between $40,000 and $150,000. Although Shands and Debra Ferrell
were conversing in another room at the time, Shands overheard some portion of the
conversation. While driving home, Shands asked Kimberland about the
conversation. Upon being informed about the nature of the conversation, Shands
discouraged Kimberland from any participation.
Subsequently, Kimberland decided to participate in the scheme. He met with
Lloyd Ferrell and was advised that the elderly couple was related to Lloyd. Lloyd
drove Kimberland by the elderly couple’s residence and advised where he would let
Kimberland out of the vehicle and where he would pick him up. Lloyd advised
Kimberland that he should kick in the back door, tape up the couple and make them
tell where the money was located. Lloyd agreed to provide an unregistered .380
pistol for Kimberland’s use. They decided the robbery would take place early the
next morning.
The next morning, March 27, 1996, Lloyd called Kimberland at approximately
4:30 a.m. advising that he was on his way to get him. Shortly thereafter,
Kimberland called back to advise Lloyd that he had found his ski mask and would
not need one to be provided by Lloyd. Debra Ferrell answered the phone and
stated, “He’s already gone and is bringing a ski mask and gun.”
Lloyd then arrived in his green Buick LeSabre and picked up Kimberland.
Two residents of the Ferrell’s apartment complex recognized Kimberland talking to
a man in a dark-colored Buick in the parking lot.
Kimberland left with Lloyd, and Lloyd gave him the gun. They stopped at a
store to buy cigarettes, and Kimberland spoke briefly to a friend. The friend
identified Lloyd as the driver of the vehicle, a Buick automobile, in which Kimberland
was riding.
Lloyd then drove near the elderly couple’s residence where Kimberland
exited the car. Kimberland went to the residence. Armed with the gun he had
loaded with ammunition supplied by Lloyd, Kimberland pushed open the couple’s
door and entered the residence of Hobert and Mary Ferrell. Mary Ferrell had earlier
seen Kimberland outside the residence and supplied her husband with a shotgun.
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Upon being confronted by Hobert Ferrell holding a shotgun, Kimberland began
running and shooting back toward Hobert Ferrell. Hobert Ferrell was killed by this
gunfire.
Kimberland fled and was ultimately captured some distance from the
residence. He was still wearing the ski mask. A subsequent search of the area
yielded the .380 pistol. Kimberland later confessed to his role in the attempted
aggravated robbery and homicide and implicated Lloyd Ferrell. At trial Kimberland
testified for the state.
Shortly after the murder, the victim’s personal attorney came to the
residence. His widow turned over to him for safe keeping over $61,000 in cash that
was in the residence.
At approximately 8:30 a.m. on the morning of the murder, Debra Ferrell
called Stacye Shands and advised her that something was wrong and, “They’ve got
Jason, or they’ve got somebody.” Debra advised her that if any investigators came
to speak with her, she should tell them she knew nothing. Shortly thereafter, an
investigator spoke with Shands. Shands agreed to tape record any calls made to
her by the Ferrells.
Shands recorded subsequent calls made by Debra Ferrell on that same date.
Debra insisted numerous times that Shands tell the authorities she knew nothing;
otherwise, “Everybody can be charged...if you say you know anything.”
In one of the conversations Shands and Debra Ferrell discussed whether the
elderly couple had a phone. Debra stated:
No, no, no. That’s all wrong. Lloyd told him right the
opposite. He told ‘em they did have one, and they do
have a phone ‘cause we looked it up in the book to
make sure. I knew they had a phone, and we knew
they had a pistol...
The defense presented four witnesses. The first was J. W. Kimberland, the
father of Jason Kimberland. He testified he had been with his son the day before
the shooting, and his son did not appear to be under the influence of any kind of
intoxicant.
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Brenda Smith then testified that she provided information to authorities about
a .380 pistol her husband had once owned; however, she did not contend that this
pistol was the gun used in the shooting.
Ron Harmon, counsel for Jason Kimberland, testified. He stated Kimberland
did not receive or ask for any special consideration for testifying at the trial.
Dr. L. D. Hutt, a clinical psychologist, testified concerning his evaluation of
Debra Ferrell. Dr. Hutt testified Debra Ferrell had an “histrionic personality.” A
person with this type personality would tend to exaggerate.
Neither defendant testified.
The jury convicted each defendant of felony murder based upon their
criminal responsibility for the felony murder committed by Jason Kimberland.
SUFFICIENCY OF THE EVIDENCE
Both defendants contend the evidence is insufficient to support the finding
of guilt. In determining the sufficiency of the evidence, this Court does not reweigh
or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
A jury verdict approved by the trial judge accredits the state's witnesses and
resolves all conflicts in favor of the state. State v. Bigbee, 885 S.W.2d 797, 803
(Tenn. 1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). On appeal, the state
is entitled to the strongest legitimate view of the evidence and all legitimate or
reasonable inferences which may be drawn therefrom. Id. This Court will not disturb
a verdict of guilt due to the sufficiency of the evidence unless the defendant
demonstrates that the facts contained in the record and the inferences which may
be drawn therefrom are insufficient, as a matter of law, for a rational trier of fact to
find the accused guilty beyond a reasonable doubt. State v. Brewer, 932 S.W.2d
1, 19 (Tenn. Crim. App. 1996). Accordingly, it is the appellate court's duty to affirm
the conviction if the evidence, viewed under these standards, was sufficient for any
rational trier of fact to have found the essential elements of the offense beyond a
reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 317,
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99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); State v. Cazes, 875 S.W.2d 253, 259
(Tenn. 1994).
Although the evidence of guilt is circumstantial in nature, circumstantial
evidence alone may be sufficient to support a conviction. State v. Tharpe, 726
S.W.2d 896, 899-900 (Tenn. 1987); State v. Gregory, 862 S.W.2d 574, 577 (Tenn.
Crim. App. 1993); State v. Buttrey, 756 S.W.2d 718, 721 (Tenn. Crim. App. 1988).
However, in order for this to occur, the circumstantial evidence must be not only
consistent with the guilt of the accused but it must also be inconsistent with
innocence and must exclude every other reasonable theory or hypothesis except
that of guilt. Tharpe, 726 S.W.2d at 900. In addition, “it must establish such a
certainty of guilt of the accused as to convince the mind beyond a reasonable doubt
that [the defendant] is the one who committed the crime.” Tharpe, 726 S.W.2d at
900 (quoting Pruitt v. State, 460 S.W.2d 385, 391 (Tenn. Crim. App. 1970).
Kimberland was unquestionably an accomplice in this criminal endeavor, and
the jury was so instructed. In Tennessee, a conviction may not be based solely
upon the uncorroborated testimony of an accomplice. State v. Maddox, 957 S.W.2d
547, 554 (Tenn Crim. App. 1997). The issue of whether an accomplice’s testimony
has been sufficiently corroborated becomes a matter entrusted to the jury, as the
trier of fact. Bigbee, 885 S.W.2d at 803.
A. Criminal Responsibility for Felony Murder
The state contends each defendant is criminally responsible for the conduct
of Kimberland who murdered the victim in perpetration of the attempted aggravated
robbery. The state must prove beyond a reasonable doubt that a defendant acted
with intent to promote or assist the commission of the offense, or to benefit in the
proceeds or results of the offense; and the defendant solicited, directed, aided, or
attempted to aid another person to commit the offense. Tenn. Code Ann. § 39-11-
402(2). The state must also prove beyond a reasonable doubt that Kimberland
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unlawfully killed the victim in the attempt to perpetrate the robbery. Tenn. Code
Ann. § 39-13-202(a)(2).
It was clearly established that Kimberland committed the offense of felony
murder by unlawfully taking the life of the victim in the perpetration of the attempted
robbery. Thus, the crucial issue is whether the evidence is sufficient to show that
each defendant met the criteria for criminal responsibility for the felony murder
committed by Kimberland. If so, each defendant is criminally responsible for the
felony murder as the natural and probable consequence of the intended aggravated
robbery. State v. Carson, 950 S.W.2d 951, 956 (Tenn. 1997).
B. Lloyd Ferrell - Sufficency of the Evidence
Looking at the evidence in a light most favorable to the state, Lloyd Ferrell
solicited Kimberland to commit the robbery. On the morning of the attempted
robbery, he furnished a gun to Kimberland. Lloyd drove the vehicle and let
Kimberland out near the residence of the elderly couple. Kimberland was seen by
witnesses getting into Lloyd’s car. Lloyd was personally identified as the driver of
the car.
Furthermore, the testimony of Kimberland was sufficiently corroborated.
Lloyd was identified by an independent witness as being the driver of the car just
prior to the homicide. Independent witnesses saw Kimberland in that car just prior
to the homicide. Lloyd’s automobile was also identified by independent witnesses.
The testimony of Kimberland was sufficiently corroborated.
In a light most favorable to the state, a rational trier of fact could find that
Lloyd Ferrell acted with the intent to promote and assist in the commission of the
offense; intended to benefit in the proceeds of the robbery; and both solicited and
aided Kimberland in the commission of the offense. See Tenn. Code Ann. § 39-11-
402(2). Thus, the evidence is sufficient to support the verdict of guilt as to Lloyd
Ferrell.
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C. Debra Ferrell - Sufficiency of the Evidence
The issue of Debra Ferrell’s criminal responsibility for felony murder is much
more difficult. However, in a light most favorable to the state, we conclude the
evidence is also sufficient to establish that Debra Ferrell acted with the intent to
promote or assist in the commission of the offense and that she aided in its
commission.
In a light most favorable to the state, the following involvement of Debra
Ferrell was established by the evidence:
(1) Prior to the murder, she was aware of the criminal
scheme and had looked in a phone book to see if the
elderly couple had a phone. She knew her husband
was also aware of this information.
(2) During the early morning hours of March 27, 1996, she
was aware that Jason Kimberland, with assistance from
Lloyd Ferrell, intended to commit an aggravated robbery
at the residence of Hobert and Mary Ferrell.
(3) She knew her husband arose early on the morning of
the murder and left their residence with a gun and ski
mask to be used in the intended aggravated robbery.
(4) Upon being called by Kimberland on the morning of and
just prior to the murder, she advised him that Lloyd was
on his way to get Kimberland and that Lloyd was
bringing a ski mask and gun.
(5) Her conversations with Stacye Shands after the robbery
indicate Debra Ferrell urged Shands not to reveal
information to the authorities.
Debra Ferrell contends the evidence proves only her knowledge of the
intended robbery prior to its failed attempt. Mere knowledge that another intends
to commit a crime would not establish her criminal liability. See 22 C.J.S. Criminal
Law § 139 (1989). Furthermore, the mere fact that one, after the actual commission
of the principal crime by the perpetrator, urges another not to cooperate does not
establish criminal liability for the same offense as committed by the principal
offender.
However, the evidence reveals that Debra Ferrell not only had knowledge of
the intended aggravated robbery, but also committed acts to promote its
commission. More specifically, she determined by looking in a telephone book that
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the intended victims had a telephone. Furthermore, she provided information to
Kimberland on the morning of the crime that her accomplice-husband was on his
way to get him and had a gun and ski mask. Thus, she acted with the intent to
promote the aggravated robbery; it could reasonably be inferred that she intended
to share in the robbery proceeds with her husband; and she aided the principal
perpetrator by providing him with material information. The elements of criminal
responsibility for felony murder are, therefore, established. See Tenn. Code Ann.
§ 39-11-402(2).
Certainly, her actual involvement was much less than her co-defendants.
Yet, it was for the jury to determine whether these acts were sufficient to justify her
criminal responsibility for felony murder. The jury had sufficient evidence before it
to justify the guilty finding.
This issue is without merit.
TAPED CONVERSATIONS OF DEBRA FERRELL
Both defendants contend the trial court erred in admitting the taped
conversations between Debra Ferrell and Stacye Shands shortly after the homicide.
Lloyd Ferrell contends the taped conversations violate his right to confrontation.
Debra Ferrell contends there is no showing that Stacye Shands consented to the
taping of the conversations. We find the arguments of both defendants to be
without merit.
A. Lloyd Ferrell - Taped Conversations
The defendant, Lloyd Ferrell, contends the admission of his wife’s taped
conversations with Stacye Shands was in violation of Bruton v. United States, 391
U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). The Court held in Bruton that the
admission of a confession of a non-testifying co-defendant implicating the
defendant was inadmissible since the defendant was deprived of the right of
9
confrontation. 391 U.S. at 126. The taped conversations of Debra Ferrell do not
constitute a confession to a law enforcement officer; nevertheless, the admission
of statements by Debra Ferrell implicating Lloyd Ferrell might still be in violation of
the right of confrontation since Debra Ferrell did not testify at trial. Furthermore, the
statements raise potential hearsay issues.
Statements made by Debra Ferrell implicating Lloyd Ferrell are not
admissible unless the statements fall within an exception to the hearsay rule and
right of confrontation.
Our review of the lengthy taped conversations reveals very few instances in
which Lloyd Ferrell is implicated. However, the tapes did contain the following
statements of Debra Ferrell: Lloyd wanted me to call; Lloyd is worried and trying to
get Kimberland out of jail; Lloyd told Kimberland the elderly couple had a gun and
phone; Lloyd did not know there were two other people involved;2 and Kimberland
told Lloyd he intended to just get the money and leave.
The state contends the statements of Debra Ferrell qualify under the co-
conspirator exception to the hearsay rule. See Tenn. R. Evid. 803(1.2)(E).
Evidence within this hearsay exception is firmly rooted and is not barred by the
Confrontation Clause. Bourjaily v. United States, 483 U.S. 171, 183, 107 S. Ct.
2775, 2782, 97 L. Ed. 2d 144 (1987); State v. Alley, 968 S.W.2d 314, 317 (Tenn.
Crim. App. 1997).
Tenn. R. Evid. 803(1.2)(E) provides that “a statement by a co-conspirator of
a party during the course of and in furtherance of the conspiracy” is not excluded
by the hearsay rule. Thus, this Court must determine whether the statements made
by Debra Ferrell implicating Lloyd Ferrell were made “during the course of and in
furtherance of the conspiracy.”
This issue is controlled by State v. Walker, 910 S.W.2d 381 (Tenn. 1995).
The Walker court held that a conspiracy terminates with the consummation of the
robbery; therefore, statements made after the robbery relating to the circumstances
of the robbery are inadmissible. 910 S.W.2d at 386. However, Walker recognized
2
This theory was not established at trial.
10
that a conspiracy might also exist to conceal the circumstances of the original crime,
thus creating a later conspiracy which might give rise to the hearsay exception. Id.;
see also N. Cohen, D. Paine & Sheppeard, Tennessee Law of Evidence, § 803(1.2)
.6 (Supp. 1997). We further note that under the statute a conspiracy terminates
when its “objectives” are completed, and the “objectives” include “measures, other
than silence, for concealing the crime or obstructing justice in relation to it.” Tenn.
Code Ann. § 39-12-103(e)(1).
The only statements made by Debra Ferrell implicating Lloyd Ferrell that
related to the circumstances of the crime were the following: (1) Lloyd told
Kimberland the elderly couple had a gun and phone; (2) Lloyd did not know there
were two other people involved; and (3) Kimberland told Lloyd just before the crime
that he was only going to get the property and leave. These statements were
inadmissible. Nevertheless, in light of the overwhelming evidence against Lloyd
Ferrell, we conclude the limited references in the taped conversations to the
circumstances of the original crime constituted harmless error. Tenn. R. App. P.
36(b).
B. Debra Ferrell - Taped Conversations
Debra Ferrell insists there is no evidence that Stacye Shands consented to
the tape recording of the conversations. She insists the evidence is inadmissible
under federal law without consent of one of the parties. See 18 U.S.C. §§
2511(2)(c), 2518(10)(a); State v. Crawford, 783 S.W.2d 573 (Tenn. Crim. App.
1989). Contrary to her assertions, the record is abundantly clear that Shands
specifically agreed to tape record the conversations. See State v. Carey Dean,
C.C.A. No. 02C01-9110-CC-00226 Madison County (Tenn. Crim. App. filed May 27,
1992, at Jackson).
This issue is without merit.
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MOTION FOR SEVERANCE
Both parties contend the trial court erred in denying their motions for
severance. The trial court did sever the co-defendant, Jason Kimberland, for a
separate trial. A motion to sever is discretionary with the trial court, and the court’s
decision will not be reversed unless it clearly prejudiced a defendant. State v.
Hutchison, 898 S.W.2d 161, 166 (Tenn. 1994).
A. Lloyd Ferrell - Severance
Lloyd Ferrell contends his trial should have been severed from that of his
wife’s since her taped conversations implicating him were introduced at trial, and
she was not subject to cross-examination. Tenn. R. Crim. P. 14(c) sets forth the
criteria for severance of defendants. Where a co-defendant has made a pretrial
statement implicating the defendant which is inadmissible against the defendant,
the court must either (a) not admit the statement at a joint trial; (b) make appropriate
redactions to all references to the moving defendant; or (c) grant the severance as
to the moving defendant. Tenn. R. Crim. P. 14(c)(1). Having earlier concluded that
those portions of the taped conversations implicating the defendant in the
circumstances of the offense should not have been introduced, we must also
conclude the trial court erred by not following one of the three procedures in Tenn.
R. Crim. P. 14(c)(1) as set out above. Nevertheless, as with the error in regard to
the erroneous admission of certain portions of the taped conversations, we likewise
find this error to be harmless. Tenn. R. App. P. 36(b).
B. Debra Ferrell - Severance
Debra Ferrell contends the trial court should have severed her trial from that
of her husband’s. Since Lloyd Ferrell made no pretrial statements implicating her,
Tenn. R. Crim. P. 14(c)(1) is inapplicable. Nevertheless, Tenn. R. Crim. P. 14(c)(2)
12
provides that a severance shall be granted before or during trial, if it is deemed
appropriate to promote a fair determination of guilt or innocence. We are unable
to conclude that a severance was necessary for a fair determination of Debra
Ferrell’s guilt or innocence. The trial court did not abuse its discretion in refusing
to grant Debra Ferrell a severance.
FAILURE TO ADMIT CERTAIN TAPED CONVERSATIONS
Lloyd Ferrell contends the trial court erred in refusing to admit a taped
conversation that he had with Kimberland’s father. He contends this tape is
exculpatory. Debra Ferrell contends the trial court erred in refusing to admit into
evidence certain taped conversations she had with Stacye Shands. She contends
fairness dictates their admission since other taped conversations were introduced
by the state.
A. Lloyd Ferrell - Failure to Admit Tape
The conversation sought to be introduced by Lloyd Ferrell consisted of a
taped conversation that he had with Kimberland’s father. In that conversation Lloyd
Ferrell denied any criminal involvement.
This conversation was hearsay since it was being offered for the truth of the
matter asserted; to-wit, that Lloyd Ferrell did not commit any criminal impropriety.
See Tenn. R. Evid. 801(c). Such prior self-serving statements are not admissible.
State v. Turnmire, 762 S.W.2d 893, 897 (Tenn. Crim. App. 1988).
B. Debra Ferrell - Failure to Admit Tapes
Debra Ferrell contends the trial court erred in refusing to allow into evidence
her taped conversations recorded on the day following the murder. Since prior
recordings were introduced, she contends these recordings should have been
13
introduced pursuant to Tenn. R. Evid. 106. Tenn. R. Evid. 106 provides:
When a writing or recorded statement or part thereof
is introduced by a party, an adverse party may require
the introduction at that time of any other part or any
other writing or recorded statement which ought in
fairness to be considered contemporaneously with it.
In the taped conversations at issue, Debra Ferrell spoke at length with Stacye
Shands primarily about the need for Kimberland to retain counsel. They were not
as inculpatory as the prior conversations admitted into evidence.
At trial defense counsel did not seek admission of these tapes pursuant to
Tenn. R. Evid. 106. Defendant may not now take a different position on appeal.
See generally, State v. Brewer, 932 S.W.2d 1, 9 (Tenn. Crim. App. 1996).
Furthermore, our review of the rambling tapes does not reveal that they “ought in
fairness to be considered contemporaneously with” the other taped conversations.
Our review of the questioned tapes does not reveal that their admission would have
benefited Debra Ferrell. Even if the trial court erred in failing to admit these tapes,
such error was harmless at most. Tenn. R. App. P. 36(b).
This issue is without merit.
IMPROPER CLOSING ARGUMENT
Both defendants contend the prosecuting attorney made improper and
inflammatory remarks in closing argument by stating the defendants were like a
“cancer” that needed to be removed and suggesting the defendants intended to
murder Stacye Shands. Debra Ferrell also contends the prosecuting attorney went
outside the record when he argued Debra Ferrell was “the brains behind the outfit.”
No objection was voiced to any of these statements during final argument.
This issue is waived. Tenn. R. App. P. 36(a); State v. Gregory, 862 S.W.2d 574,
578 (Tenn. Crim. App. 1993). Even if the issue were not waived, we would not find
reversible error resulting from these arguments.
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DISMISSAL OF JUROR
Both defendants contend the trial court erred in the dismissal of a juror during
trial. We respectfully disagree.
After the completion of the evidence but prior to the jury charge, the trial court
had a conversation with a juror in chambers in the presence of the court reporter,
but outside the presence of counsel. The juror informed the trial judge that he had
realized that he had close friends who were also friends of the defendant’s son.
The trial judge then brought in the attorneys, and the juror explained the relationship
that made him feel uncomfortable about continuing to serve as a juror. Both
counsel were given an opportunity to question the juror but declined. Upon the juror
again indicating that this relationship would interfere with his ability to reach a
decision, the trial judge discharged the juror and replaced him with an alternate.
Generally, a trial judge should have no ex parte conversations with members
of the jury. See Spencer v. A-1 Crain Service, Inc., 880 S.W.2d 938, 941 (Tenn.
1994); State v. Tune, 872 S.W.2d 922, 928 (Tenn. Crim. App. 1993). However, we
do not find reversible error under the circumstances. The ex parte conversation
was on the record,3 and counsel was immediately brought into the conference.
Counsel was given an opportunity to question the juror. Thus, we find no prejudice
to the defendants.
Furthermore, the trial judge discharged the juror upon a showing that this
social relationship would interfere with his ability to reach a verdict. The discharge
of a juror and substitution of an alternate juror is left to the sound discretion of the
trial judge. State v. Cleveland, 959 S.W.2d 548, 551 (Tenn. 1997); State v.
Millbrooks, 819 S.W.2d 441, 445 (Tenn. Crim. App. 1991). The trial judge did not
abuse his discretion in discharging the juror.
3
The presence of the court reporter allows for the preservation of the record but does
not alleviate the problem relating to the right of the parties or counsel to be present.
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INEFFECTIVE ASSISTANCE OF COUNSEL
Debra Ferrell contends trial counsel was ineffective by failing to pursue a
motion to suppress the taped conversations. She obviously has different counsel
on appeal. This issue was not raised in the motion for new trial, and we find no
plain error. We also note this issue could not have been raised in the motion for
new trial since defendant was represented at that time by the same trial counsel.
This issue is waived. See Tenn. R. App. P. 3(e).
NEWLY DISCOVERED EVIDENCE
Finally, Debra Ferrell contends newly discovered evidence entitles her to a
new trial. Specifically, she contends her post-trial discovery of Kimberland’s alleged
use of drugs at the time of the incident and his low mental capability entitles her to
a new trial. She concedes the record does not include the appropriate documents
supporting her argument.
The granting or refusal of a new trial on the basis of newly discovered
evidence rests within the sound discretion of the trial court. State v. Walker, 910
S.W.2d at 395. The trial court must determine whether the result of trial would likely
be changed with the newly discovered evidence. State v. Nichols, 877 S.W.2d 722,
737 (Tenn. 1994). On the basis of the scant record before us, we are unable to
conclude that the trial court abused its discretion in denying the motion.
This issue is without merit.
CONCLUSION
Based upon the foregoing, the judgment of the trial court is AFFIRMED as
to both defendants.
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_____________________________
JOE G. RILEY, JUDGE
CONCURS:
_____________________________
PAUL G. SUMMERS, JUDGE
_____________________________
DAVID H. WELLES, JUDGE
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