Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs December 16, 2014
Appeal from the Criminal Court for Davidson County No. 2008-C-2587 J. Randall Wyatt, Jr., Judge
Jeffrey T. Daigle, Nashville, Tennessee, for the appellant, Charles Steven Shivers.
Herbert H. Slatery III, Attorney General and Reporter; Clarence Lutz, Senior Counsel; Victor S. Johnson, III, District Attorney General; and Ben Ford, Assistant District Attorney General, for the appellee, State of Tennessee.
John Everett Williams, J., delivered the opinion of the Court, in which Thomas T. Woodall, P.J., and Robert W. Wedemeyer, J., joined.
JOHN EVERETT WILLIAMS, JUDGE
FACTUAL AND PROCEDURAL HISTORY
The petitioner's convictions resulted from the robbery and shooting of the victim, Artenner Mann, in the course of a drug transaction. State v. Charles Steven Shivers a.k.a. Scott Kevin McNeil, No. M2009-02079-CCA-R3-CD, 2011 WL 6382552 (Tenn. Crim. App. Dec. 19, 2011), perm. app. denied (Tenn. Apr. 11, 2012). At the petitioner's trial, the victim testified that a man named Lamont Butler had arranged for the petitioner to buy around $1, 500 worth of crack cocaine from the victim. The petitioner arrived in a white SUV, and during the transaction, he and another man shot the victim thirteen times. Id. at *1. The victim also testified that the men searched his clothing and that he was missing over $2, 000 when he was released from the hospital. Id. at *1-2. Mr. Butler confirmed that he arranged the drug transaction and testified that the petitioner confessed to shooting the victim. Id. at *2. An eyewitness saw a white SUV leaving the scene, and telephone records established contact between the victim and petitioner on the night of the incident. Id. at *3. The victim, communicating through the use of hand signals while hospitalized, initially implicated Mr. Butler in the shooting. Id. at *4.
The jury began deliberations late in the day on April 15, 2009, and was not able to reach a decision the first or second day:
On April 16, 2009, the jury resumed deliberations at 8:47 a.m. At 2:44 p.m., the trial court polled the jury and determined that no verdict had been reached. The jury consensus was to continue deliberations longer into the day and only to continue into tomorrow if necessary. However, one juror, Juror Maloney complained: "Judge, I don't think – we've hashed this and hashed this and hashed it. And I don't think staying another day is going to change it. I think – we've discussed it from every angle." The judge listened and explained, "I would like to let you continue to deliberate a little further." At 3:35 p.m., the jury returned with a new foreperson. They retired for the evening and resumed deliberations the following day. When court opened the following day, the trial judge acknowledged the occurrence of an ex parte contact with a juror. During a jury-out meeting held on the record, the trial court described the circumstances and content of the ex parte contact as follows:
All right. Have a seat. Bring the defendant in. I've talked to Mr. Mahoney [sic]. And he's a very nice gentleman. And he was just a little bit, you know, stressed, in a way. He's older than I thought he was, as a matter of fact. You know, I thought he was about my age and that's old enough. But, anyway, he works at Opryland in security. We talked. We didn't say one word about the trial. I just wanted to make sure his health was okay. And Alex was in there with me, sitting there as my trusted monitor or whatever it is. We said not one word about this trial. All we talked about is him and his health and his well-being. And I'm satisfied that after we talked, he's going to be fine. And he can handle this and he can come in here and then we're going to go ahead with deliberations. So – I mean, I did it in the best way I could do. And that's all I know to say. So bring the Jury in. He's a nice gentleman, he is.
Id. at *5.
Defense counsel did not object to this ex parte contact or move for a mistrial, and the jury convicted the petitioner after further deliberation. Id. at *6. Defense counsel raised the issue of the ex parte contact as error on appeal. Id. at *10-11. This court concluded that the petitioner waived the issue by failing to object or to establish a proper record from which the nature and extent of the ex parte contact could be determined. Id. at *11. However, we further noted:
Even had this issue not been waived, we can discern from the record no manner in which either the defendant or the justice system suffered any sort of prejudicial effect from the trial judge's well-intentioned, albeit legally erroneous, ...