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State v. Bondurant3/20/1998
who heard the case were biased or prejudiced because of pre-trial publicity. State v. Stapleton, 638 S.W.2d 850, 856 (Tenn. Crim. App. 1982). Prejudice will not be presumed on the mere showing that there was considerable pre-trial publicity. Dobbert v. Florida, 432 U.S. 282, 303, 97 S. Ct. 2290, 2303 (1977); State v. Kyger, 787 S.W.2d 13, 19 (Tenn. Crim. App. 1989). The fact that there was extensive knowledge in the community of the crimes and of the defendant is not sufficient to render the trial constitutionally unfair. Dobbert, 432 U.S. at 303, 97 S. Ct. at 2303.
Moreover, it is sufficient "if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court." Irvin v. Dowd, 366 U.S. 717, 723, 81 S. Ct. 1639 (1961). "To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard." Id., 81 S. Ct. at 1642-43; see Adams v. State, 563 S.W.2d 804, 807 (Tenn. Crim. App. 1978).
In Irvin v. Dowd, two-thirds of the jurors actually seated had been exposed to a barrage of pretrial publicity right up until the time of trial, had already formed an opinion that the defendant was guilty, and acknowledged familiarity with material facts and circumstances of the case. Irvin, 366 U.S. at 726, 81 S. Ct. at 1645. In addition, even the headlines of one of the local newspapers reported during jury selection that "impartial jurors are hard to find." Id., 366 U.S. at 727, 81 S. Ct. at 1645. Although each of the jurors said that he could be impartial, the United States Supreme Court concluded that "ith his life at stake, it is not requiring too much that petitioner be tried in an atmosphere undisturbed by so huge a wave of public passion and by a jury other than one in which two-thirds of the members admit, before hearing any testimony, to possessing a belief in his guilt." Id. 366 U.S. at 728, 81 S. Ct. at 1645.
Unlike the jury in Irvin v. Dowd, the record in this case reflects that the exposure of the actual jurors to pre-trial publicity ranged from nonexistent to moderate. One juror stated that she did not remember hearing anything about the case. Another stated that she had not heard of the case until the morning of jury selection, when she read in The Tennessean that eleven jurors had been seated in the case. The other ten jurors all indicated that they had heard or read about the case; however, many of them could not remember anything about it. All the jurors told the trial Judge during voir dire that they had formed no opinion as to the defendant's guilt and that they could decide the case on the proof presented at trial.
While neither the trial court nor counsel asked jurors detailed questions about what they had heard or read about these cases, reversible error is not indicated. "uestions about the content of the publicity to which jurors have been exposed might be helpful in assessing whether a juror is impartial." However, such questions are not constitutionally compelled, and the trial court's failure to ask these questions is not reversible error unless it rendered the defendant's trial fundamentally unfair. Mu'Min v. Virginia, 500 U.S. 415, 425-26, 111 S. Ct. 1899, 1905 (1991); see State v. Howell, 868 S.W.2d 238, 247 (Tenn. 1993).
As to the testimony and affidavits of jurors at the hearing on the motion for new trial, Tennessee Rule of Evidence 606(b) prohibits a juror from giving testimony on any matter or statement occurring during the course of the jury's deliberations or on the effect of anything upon a juror's mind or emotion as influencing
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