Court of Criminal Appeals of Tennessee, Nashville
TERRY D. SANDERS
STATE OF TENNESSEE
Assigned on Briefs October 29, 2014
Appeal from the Circuit Court for Houston County No. 5130 George Sexton, Judge
Kelly Jackson Smith, Dickson, Tennessee, for the appellant, Terry D. Sanders.
Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Senior Counsel; Ray Crouch, District Attorney General; and Sarah Whitney Wojnarowski, Assistant District Attorney General, for the appellee, State of Tennessee.
Robert H. Montgomery, Jr., J., delivered the opinion of the court, in whicH John Everett Williams and Roger A. Page, JJ., joined.
ROBERT H. MONTGOMERY, JR., JUDGE
The Petitioner's convictions relate to two sales of crack cocaine to a confidential informant. The Petitioner was charged with three counts involving two informants, and the counts in this case were severed from the count involving the other informant. The first trial for these counts resulted in a mistrial after discovery of the existence of a video recording of which the prosecutor had been unaware. The Petitioner was convicted at the second trial.
The transcript of the second trial reflects that before the proof began, the trial judge stated the following:
Of course, we mentioned from the previous trial there was a ruling apparently when the informant goes to Mr. Sanders' house and Mr. Sanders gave him the [shh] be quiet sign, pointed to the monitor on his leg because he was on community corrections. I recall my ruling to be – the witness can testify to him being told to be quiet and pointing to the monitor but obviously not to mention anything about community corrections.
The record does not reflect whether the informant was in the courtroom during the judge's remarks. During cross-examination of the informant, trial counsel questioned the informant about whether he and the Petitioner discussed the drug deals by telephone before the informant went to the Petitioner's house. The informant testified that no arrangements were made by telephone, although he might have called the Petitioner to let him know he was on his way. The following exchange then took place:
Q. With no phone call ahead of time to even know that he was home.
A. Terry Sanders had to be home.
Q. He had to be home?
A. He was on community corrections.
In the Petitioner's appeal of the convictions, this court determined that the trial court did not abuse its discretion in denying a mistrial after the informant testified about the Petitioner's being on community corrections. This court also determined that the court did not err in denying the motion for a new trial based upon the discovery after the trial that a juror's sister was the community corrections program director. This court concluded that the issue regarding trial counsel's legal representation of a juror was waived because it was not raised in a written motion for a new trial but that in any event, no plain error existed. See State v. Terry Sanders, No. M2011-00426-CCA-R3-CD, 2012 WL 5948885 (Tenn. Crim. App. Nov. 15, 2012), perm. app. denied (Tenn. Mar. 5, 2013).
Assistant District Attorney General Craig Monsue, the prosecutor at the trial, testified that on the morning of the second trial, he counseled the confidential informant not to testify about the Petitioner's being on community corrections. He said that when he questioned the informant on direct examination, though, he thought the informant was about to say something about the Petitioner's being on community corrections, and he directed the informant's testimony to other matters.
The prosecutor testified that his standard practice was to question prospective jurors to discover bias or prejudice. He said he typically questioned them about whether they knew or had been represented by defense counsel or had friends or family who were represented by defense counsel.
Cynthia Camp, a juror at the trial, testified that her sister, April Clark, was a probation officer. She thought Ms. Clark was the community corrections program director. She said that she did not know the identity of Ms. Clark's clients. She said they discussed family, not Ms. Clark's employment, when they spent time together. Ms. Camp said she knew before the trial that ankle monitors were worn ...