Court of Criminal Appeals of Tennessee, Nashville
WILLIAM B. GATLIN
STATE OF TENNESSEE
February 14, 2017 Session
from the Circuit Court for Marshall County No. 25-CR-157-PCR
F. Lee Russell, Judge
William B. Gatlin, appeals the denial of his petition for
post-conviction relief. Petitioner alleges that the jury at
his original trial was subjected to an improper outside
influence, thereby violating his Sixth Amendment right to an
impartial jury. Petitioner also contends that the
post-conviction judge was disqualified and should have
recused himself because he had also presided as the trial
judge in Petitioner's original trial. Upon our review of
the record and applicable authorities, we affirm the judgment
of the post-conviction court.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
A. Long, Franklin, Tennessee, for the appellant, William
Herbert H. Slatery III, Attorney General and Reporter; Clark
B. Thornton, Senior Counsel; Robert J. Carter, District
Attorney General; and Weakley E. Barnard, Assistant District
Attorney General, for the appellee, State of Tennessee.
Timothy L. Easter, J., delivered the opinion of the court, in
which Thomas T. Woodall, P.J., and Robert W. Wedemeyer, J.,
TIMOTHY L. EASTER, JUDGE.
and Procedural Background
2013, Petitioner was convicted by a jury of one count of
possession of marijuana with intent to sell, one count of
possession of marijuana with intent to deliver, and one count
of possession of drug paraphernalia. The trial court merged
the marijuana convictions and imposed a total effective
sentence of two years, eleven months, and twenty-nine days.
On direct appeal, Petitioner challenged the trial court's
denial of "his motion to suppress the evidence obtained
during the knock-and-talk encounter and the warrantless entry
into his apartment" as well as the sufficiency of the
evidence. State v. William Bryan Gatlin, No.
M2013-02440-CCA-R3-CD, 2015 WL 59746, at *3 (Tenn. Crim. App.
Jan. 2, 2015), perm. app. denied (Tenn. May 22,
2015). This Court affirmed the judgment of the trial court,
and the Tennessee Supreme Court denied permission to appeal.
Id. at *1.
the assistance of counsel, Petitioner filed a timely petition
for post-conviction relief. As pertinent to this appeal,
Petitioner alleged a violation of his Sixth Amendment right
to an impartial jury based on a newspaper editorial that
claimed that the jury was kept in the courtroom for eleven
hours with only a lunch break and that at least one juror had
doubts about the guilty verdict. Petitioner argued that this
editorial suggested that the jury "reached their verdict
under an improper motivation, " basing their decision to
find Petitioner guilty "upon their desire to terminate
their duties and be released to go home and not . . . upon
the sufficiency of the evidence."
status hearing on January 8, 2016, counsel apparently sought
recusal of the Honorable F. Lee Russell as the
post-conviction judge because he had also presided as the
trial judge. Judge Russell granted a continuance for
counsel to submit a brief on the issue. Counsel filed a brief
on January 26, 2016, arguing that a trial judge is
statutorily disqualified from hearing a subsequent
post-conviction petition that does not allege ineffective
assistance of counsel. On February 17, 2016, the Honorable
Forest A. Durard, Jr., presiding judge for the Seventeenth
Judicial District, designated Judge Russell to hear the
post-conviction petition, finding that as "the judge who
originally presided over Petitioner's case . . . he would
be most familiar with the same." A post-conviction
evidentiary hearing was held on March 11, 2016.
beginning of the hearing, post-conviction counsel confirmed
that there was no allegation of ineffective assistance of
trial counsel. The post-conviction court inquired whether
trial counsel was aware of the allegation made in the
editorial and whether the issue was waived for failing to
address it on direct appeal. Post-conviction counsel said
that the editorial was published after the appeal was filed
but before it was heard. Trial counsel was present during the
post-conviction hearing but did not testify. Petitioner also
did not testify.
first witness to testify was Karen Hall, the author of an
editorial in the Marshall County Tribune that referenced,
without mentioning any specific names, Petitioner's
original trial. Ms. Hall explained that the editorial was
intended to "work people up about the local
elections" and encourage people to "speak their
mind if they were unhappy and needed more time to think or
weren't ready to decide." Ms. Hall testified that
her daughter, Maria Hall, had served as a juror on
Petitioner's trial. Juror Hall told her mother that she
felt that the jury had been "asked to stay too long and
they were tired and they couldn't hold out and make a
good decision." Ms. Hall testified that she believed her
daughter was a truthful person.
editorial was entered into evidence and reads, in pertinent
part, as follows:
The Tribune has been informed that law enforcement and the
District Attorney's office recently needed - or wanted -
to finish a jury trial in one day. By the time the jurors
retired to deliberate, they had been in the courtroom, except
for a lunch break, for 11 hours. A member of the jury told me
all they wanted to do was find the defendant guilty so they
could go home. This particular jury member had some doubts
about the evidence, and didn't think "guilty"
was the right verdict, but just didn't have the will to
keep the other jurors there to argue it out.
Making the jurors work until after 9 p.m. wasn't fair on
them, and wasn't fair on the defendant.
. . . Jury members could have spoken up and said,
"We're tired, we can't think any more - please
let us go home and come back to finish this tomorrow!"
Hall admitted that she did not verify the information that
Juror Hall told her because she was writing an editorial
rather than a news story. Ms. Hall testified that since the
publication of her editorial, she had received a letter from
Judge Russell informing her that the allegation about the
lack of breaks was incorrect. The letter, dated May 12, 2014,
was entered into evidence. The letter stated that the judge
had reviewed the trial transcript and determined that the
jury received the following breaks:
10:57 A.M. - 11:30 A.M.
12:26 P.M. - 1:32 P.M. (lunch break)
2:02 P.M. - 2:20 P.M.
4:24 P.M. (offer and jury declined break)
5:36 P.M. - 5:41 P.M.
6:19 P.M. - 7:32 P.M. (supper break)
9:03 P.M. (jury excused for deliberations and invited to take
whatever breaks they needed to take during deliberations and
that if any one of them was too tired to continue that night
all twelve would need to come back the next morning to
Maria Hall testified that she served as a juror on
Petitioner's trial. She remembered that she arrived at
the courthouse for jury selection around "quarter to
nine in the morning, " that the trial started
"sometime after lunch, " and that she was released
from her duty as a juror "sometime after nine." It
was sometime after dark when the jury started their
deliberations. She could not remember how long she and the
other jurors deliberated, but she did not "think it was
more than an hour."
Hall testified that she was originally of the opinion that
Petitioner was not guilty of "dealing drugs." She
did not believe that a certain piece of evidence was a tally
sheet of drug sales. She expressed her opinion to the other
jurors but was not successful in convincing them. Juror Hall
eventually voted guilty because she was under the impression
that the jury had to come to a unanimous decision. Juror Hall
testified that she did not understand what a "hung
jury" was at the time. Juror Hall testified that the
jury was not offered the opportunity to go home for the night
and return the following day to continue deliberations. She
stated that she would have accepted that offer because she
was anxious to get home to feed animals in her care. However,
she was not sure that a break would have changed her ...