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State v. Bondurant3/20/1998
his or her vote except that a juror may testify on the question of whether any extraneous prejudicial information was improperly brought to the jury's attention, whether any outside influence was improperly brought to bear upon any juror, or whether the jurors agree in advance to be bound by a quotient or gambling verdict without further Discussion.
Regardless of whether the jurors' affidavits and testimony were admissible under Rule 606(b), the defendant's claim that the jurors who sat and rendered the verdict were prejudiced or biased by pre-trial publicity is unsupported. The jurors who testified at the hearing indicated that they heard from the witness stand certain facts concerning the Dugger murder which were apparently inaccurate and which were not testified to in this case. If this information was learned through exposure to pre-trial publicity, each juror swore to disregard any information they had previously heard outside the courtroom. Moreover, at the hearing on the motion for new trial, none of the jurors testified concerning what they had read or heard about this case or the Dugger case before sitting as jurors. Only one of the jurors who testified indicated in his affidavit that he considered these alleged facts from the Dugger case in voting to convict the defendant, and he could not remember signing an affidavit to this effect at the time of the hearing. The other two jurors did not remember any facts from the Dugger case being discussed during deliberations.
Like the trial court, we conclude that the defendant has failed to demonstrate that the jurors who heard the case were biased or prejudiced because of pre-trial publicity, rendering his trial fundamentally unfair. See State v. Stapleton, 638 S.W.2d 850, 856 (Tenn. Crim. App. 1982). Consequently, we find that the defendant has failed to show how he was prejudiced by counsel's failure to seek a change of venue or to question potential jurors more extensively regarding their exposure to pre-trial publicity. See Strickland v. Washington, 466 U.S. at 694, 104 S. Ct. at 2068.
Finally, it appears that the jurors separately drove the two and one-half miles between the court and their motel each day during the proceedings. The defendant did not present any proof that the jurors disobeyed the trial court's order concerning exposure to news accounts of the trial or had contact with the general public during these separations. None of the jurors who testified indicated that the trial court's order was disregarded during the proceedings. While the possibility of an improper separation is increased when jurors are in the absence of a supervising officer, more than a possibility is necessary before the state is required to show that no prejudice occurred. See State v. McClain, 667 S.W.2d 64, 66 (Tenn. 1984) (jurors occupying separate motel rooms does not constitute an improper separation). This issue is without merit.
Accordingly, based on our review of the foregoing issues concerning the jury, we reject the defendant's contention that the cumulative effect of errors in selecting the jury requires the granting of a new trial.
III. DEATH QUALIFICATION OF JURORS
In another issue, the defendant contends that the trial court erred and trial counsel was ineffective by failing to ensure that potential jurors were adequately questioned concerning their attitudes about the death penalty. Thus, the defendant submits that the jurors were unable to carry out their oaths as jurors at the sentencing stage by considering both punishments and by reserving the choice between life and death until after hearing and considering mitigation proof. The state does not address this issue in its brief.
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