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State v. Henderson3/7/2001
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Appellants contend that the trial court erred when it failed to remove a juror whose ex-wife had engaged in misconduct. We disagree.
"Whether to remove jurors who become or are found to be unable or disqualified to perform their duties lies in the discretion of the trial court." State v. Forbes, 918 S.W.2d 431, 451 (Tenn. Crim. App. 1995) (citation and internal quotations omitted).
The record indicates that at the conclusion of the proof and closing arguments in this case, one of the jurors reported that earlier that day he had received a phone call from his ex-wife in which she had stated that "they" would give him $500.00 in return for a not guilty verdict for Sutton. The juror reported the call to a court officer, and the officer told the juror that he would notify the court and he told the juror not to tell any other jurors about the call.
After the juror explained what had happened, the trial court commended him for the way that he had handled the situation. The trial court then asked the juror how the phone call would affect his feelings about serving on the jury and about following the court's instructions. The juror responded, "I already told her, it's not going to change. I'm not going to change what I already decided on. They can take the money and do whatever they want with it. It just made me mad . . . ." After this somewhat ambiguous statement, the trial court asked the juror whether he would be able to vote according to the dictates of his conscience based on the proof and the instructions from the court. The juror responded that he would. After a brief bench conference, the trial court asked the juror whether he had told any other jurors about the phone call and the juror responded that he had not. The trial court then asked the juror again whether the phone call would inhibit his ability to reach a verdict based on the facts and the law. The juror responded that it would not.
Appellants' argument as to why this juror should have been removed is far from clear. However, it appears that their contention is that the juror's statement that the phone call would not "change what I already decided on" demonstrates that the juror was biased against them and that he had a preconceived judgment about the case. This statement could have any number of meanings in the context in which it was given, including an assertion that the phone call would not affect his ability to be impartial. In any case, the trial court clarified the meaning of the statement by asking the juror about whether the phone call would affect his ability to impartially reach a verdict based on the proof and the court's instructions about the law. On two occasions, the juror responded that he would follow the law and apply it to the proof that had been presented. Under these circumstances, we conclude that the trial court did not abuse its discretion when it failed to remove this juror. This issue has no merit.
XVIII. FAILURE TO GRANT A MISTRIAL
Appellants contend that the trial court erred when it failed to grant a mistrial after jurors where exposed to evidence indicating that Appellants had already been tried for the Branam murder. We disagree.
The decision of whether to grant a mistrial is within the sound discretion of the trial court. State v. McKinney, 929 S.W.2d 404, 405 (Tenn. Crim. App. 1996). This Court will not disturb that decision absent a finding of an abuse of discretion. State v. Adkins, 786 S.W.2d 642, 644 (Tenn. 1990). "Generally, a mistrial will be declared in a criminal case only when there is a `manifest necessity' requiring such action by the trial judge." State v. Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim. App. 1991
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