Session September 3, 2014.
Appeal from Criminal Court for Shelby County No. 10-03135 Paula K. Skahan, Judge.
Blake D. Ballin, Richard S. Townley, Memphis, Tennessee, for the appellant, Carl Miller, Jr.
Robert E. Cooper, Jr., Attorney General & Reporter; Rachel E. Willis, Senior Counsel, William L. Gibbons, District Attorney General, Carrie Shelton and Abby Wallace, Assistant District Attorneys General, for State of Tennessee.
Robert L. Holloway, Jr., J., delivered the opinion of the court, in which Robert W. Wedemeyer and Roger A. PAGE, JJ., joined.
ROBERT L. HOLLOWAY, JR., JUDGE.
The jury trial of Defendant began on March 25, 2013, and the proof was concluded on March 28. During jury deliberation on Good Friday, March 29, the trial judge received information concerning potential jury tampering. The trial judge conducted a jury-out hearing in which the judge, district attorney, and defense attorney questioned witnesses. Sergeant Anthony Buckner testified that he learned a deputy assigned to Homeland Security, Charles Govan, had been speaking to two members of the jury about the case. When confronted, Deputy Govan explained to Sergeant Buckner that he told the jurors to "hurry the hell up, this case is just he said/she said, what was taking so long." Sergeant Buckner then separated the two jurors from the rest of the jury and advised the judge.
Following Sergeant Buckner's testimony, the State moved for a mistrial. Defendant objected and asked to question the two jurors. The trial court granted the Defendant's request.
The first juror stated that as the jury was coming back from lunch, a deputy approached her and said, "--the case that you all [sic] on, he said I haven't read anything or I haven't heard anything about it, but he said the guy have [sic] a couple of sex tapes and you only have circumstances [sic] evidence" and "when you get back up there, get y'all's s together." When asked by the judge what she understood Deputy Govan's comments to mean, the juror answered, "Find him innocent maybe." The juror testified she did not want to continue to deliberate, but when pressed by defense counsel said she "could try."
The second juror testified that the deputy told her, "That he hadn't heard about the case, he doesn't know what's going on, that it was just some sex tapes, and when we go back upstairs we know what to do, and we need to get this 'S' over." She said the deputy's comments made her feel nervous but that she could continue to deliberate and be fair and impartial.
The remaining ten jurors were called separately, and each stated no one had spoken to them. Following the testimony, the trial judge granted the State's motion for a mistrial based on manifest necessity. There was no alternate juror available.
On August 8, 2013, Defendant filed a motion to dismiss all charges in the indictment arguing that there was a feasible alternative to declaring a mistrial, that there was no manifest necessity for a mistrial, and that subsequent prosecution was barred by double jeopardy. The motion was denied.
On December 13, 2013, Defendant entered a conditional guilty plea to B-felony rape and was sentenced to eight years at 100%. With the consent of the State and the trial judge, Defendant reserved the following certified question of law:
Whether the trial court erred in denying Defendant's motion to dismiss the indictment based on double jeopardy where the court declared a mistrial in the first trial based on potential jury tampering by a sheriff's deputy when one of the affected jurors indicated that she could disregard the statements and go back to deliberations, and the other ...