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State v. Mason11/10/2005
ation brought to the jury's attention. In Walsh, our supreme court reiterated the well-settled law that, "when it has been shown that a juror was exposed to extraneous prejudicial information or subjected to improper influence, a rebuttable presumption of prejudice arises, and the burden shifts to the State to explain the conduct or demonstrate that it was harmless." Walsh, 166 S.W.3d at 647 (citations omitted).
Further, regarding the question of whether or not juror testimony can be elicited by the State to rebut the presumption of prejudice, the supreme court held that such testimony is not admissible, stating that "we hold that Tennessee Rule of Evidence 606(b) permits juror testimony to establish the fact of extraneous information or improper influence on the juror; however, juror testimony concerning the effect of such information or influence on the juror's deliberative processes is inadmissible." Id. at 649 (emphasis added).
Pursuant to Walsh, we must totally disregard the testimony of the jurors regarding the effect of count 2 on their deliberative process. Without that testimony, there was no proof submitted by the State to rebut the presumption of prejudice. See Walsh at 649. Nevertheless, the State argues that the error was harmless because virtually all of the information contained in count 2 was testified to by Sergeant Foley during the trial. Sergeant Foley testified that he read the implied consent law to Defendant and explained the implications to her. He asked her to submit to a blood or breath alcohol test and she refused to do so. Sergeant Foley further testified that he normally warns a person arrested for DUI that if they refuse to take the blood or breath alcohol test that his or her license can be suspended. In addition, the State argues that there was no prejudice to Defendant because the trial court included in the jury instructions, the following:
If you find from the proof that the defendant was offered and refused to submit to a test for the purpose of determining the alcohol or drug content in her blood and that the officer advised the defendant that refusal to submit to such a test will result in suspension of her operator's license, then such refusal is not sufficient by itself to establish the guilt of the defendant, but it is a fact which, if proven, may be considered by you in the light of all other proven facts in deciding whether the defendant is guilty or not guilty. The weight to which such is entitled and whether or not such conduct shows a consciousness of guilt are matters for your determination.
This portion of the trial court's charge to the jury does not rebut the presumption of prejudice or otherwise make the error harmless. If anything, count 2 became, in effect, improper additional evidence of facts testified to by Sergeant Foley. These were the facts that the jury was told could be used to determine Defendant's guilt.
If the only possible prejudice to Defendant could come from the jury having knowledge of the information contained in count 2, then the State's argument might be with merit. However, in this case, we conclude that the information contained in count 2 is actually extremely prejudicial because it is essentially a written summary of a portion of the testimony of the primary prosecution witness, which is endorsed by the district attorney general, and presented in a form that implicitly indicates the approval of the Grand Jury of Davidson County as to the facts alleged therein. It would be hard to conclude under any scenario that a written summary of any prosecution witness's testimony, not made an exhibit, and presented to a jury during deliberations, would not be prejudicial.
There is
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