State of Tennessee v. William Darelle Smith

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

February 7, 2013 Session

STATE OF TENNESSEE v. WILLIAM DARELLE SMITH

Appeal by Permission from the Court of Criminal Appeals

Criminal Court for Davidson County

No. 2007-C-2675 Seth Norman, Judge

No. M2010-01384-SC-R11-CD - Filed September 10, 2013

This appeal concerns the appropriate response when a trial court learns during a jury’s

deliberations that a juror exchanged Facebook messages with one of the State’s witnesses

during the trial. A criminal court in Davidson County declined the defendant’s request to

hold a hearing to question the juror and the witness to ascertain whether the communications

required a new trial. The Court of Criminal Appeals concluded that the trial court had not

erred by declining the defendant’s request for a hearing. State v. Smith, No. M2010-01384-

CCA-R3-CD, 2012 WL 8502564 (Tenn. Crim. App. Mar. 2, 2012). We disagree and,

therefore, vacate the judgment and remand the case for a hearing consistent with this opinion.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal

Appeals Vacated and Remanded

W ILLIAM C. K OCH, J R., J., delivered the opinion of the Court, in which G ARY R. W ADE, C.J.,

J ANICE M. H OLDER, C ORNELIA A. C LARK, and S HARON G. L EE, JJ., joined.

Emma Rae Tennent (on appeal), Joan A. Lawson and J. Michael Engle (at trial), Nashville,

Tennessee, for the appellant, William Darelle Smith.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General;

Brent C. Cherry, Assistant Attorney General; Victor S. Johnson, III, District Attorney

General; Chris Buford and Katy Miller, Assistant District Attorneys General, for the

appellee, State of Tennessee.

OPINION

I.

On June 4, 2007, Zurisaday Villanueva’s body was discovered on the side of the road

near the Ashland City exit on Briley Parkway in Nashville. She had been shot twice.

Investigators found two .9 millimeter shell casings near Ms. Villanueva’s body, and the area

around the body reflected that there had been a struggle. The investigation led the authorities

to William Darelle Smith, with whom Ms. Villanueva had been living.

A Davidson County grand jury indicted Mr. Smith for the first degree murder of Ms.

Villanueva. Before jury selection began on March 8, 2010, the trial court told the

prospective jurors:

Over the country of late . . . there’s been some difficulty and it’s

going to force a change in the law with regard to jurors taking

their cell phone and texting and trying to find out about a trial or

things like that. That would be highly improper on a juror’s part

to do anything like that. As I say, you’re required to make your

decision solely upon the law and the evidence as you hear it in

the courtroom.

During the jury-selection process, both the trial court and the attorneys questioned the

prospective jurors about whether they knew the defendant, the prosecutors, the defense

attorneys, or several of the investigating officers. Three of the prospective jurors who were

eventually seated on the jury were employed at the Vanderbilt University Medical Center.1

Although the attorneys were aware that Dr. Adele Lewis, a medical examiner who had

trained at Vanderbilt, would be testifying for the State, they asked none of the jurors, not

even the three jurors affiliated with Vanderbilt, whether they knew Dr. Lewis.

After the jury was seated, the trial court provided preliminary instructions. As part

of these instructions, the trial court stated:

During the course of the trial, you should not talk with any

witnesses, defendants, or attorneys involved in this case. Please

do not talk with them about any subject whatsoever. You may

see them in the hallway, on an elevator, or at some other

1

These jurors included a physician, a registered nurse, and Glenn Scott Mitchell, a grants manager.

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location. If you do, perhaps the best standing rule is not to say

anything.2

During the trial, Mr. Smith’s cousin testified that Mr. Smith told her Ms. Villanueva

pulled a pistol on him during an argument and the pistol “went off” during the struggle. She

also testified that Mr. Smith told her that the pistol fired a second time when he was trying

to move Ms. Villanueva’s body. Mr. Smith’s girlfriend testified that Mr. Smith told her he

had killed Ms. Villanueva but that he was not sure what had happened. In addition to this

testimony, the State introduced evidence that the authorities had found Ms. Villanueva’s

blood in an automobile driven by Mr. Smith and owned by Mr. Smith’s father.

Dr. Lewis, the assistant medical examiner who performed Ms. Villanueva’s autopsy,

testified that Ms. Villanueva had been shot twice, once in the chest and once in the back of

the head. While Dr. Lewis could not ascertain which shot had been fired first, she stated that

Ms. Villanueva could have survived the chest wound with proper medical attention but that

she would not have survived the head wound. She also testified that the shots had been fired

from an “indeterminate range” and that she found no evidence that the muzzle of the pistol

had been held against Ms. Villanueva’s skin. Dr. Lewis concluded that Ms. Villanueva’s

death was a homicide.

The State called one final witness following Dr. Lewis and then rested. After the trial

court denied Mr. Smith’s motion for a judgment of acquittal, the defense rested, and the

parties made their closing arguments. The proceedings were then adjourned for the day.

When the trial resumed on March 10, 2010, the trial court charged the jury and then

instructed the jury to begin its deliberations. Approximately one hour after deliberations

began, the trial judge received an email from Dr. Lewis regarding communications that Juror

2

This was the only time this specific admonition was given to the jury during this case. The jury was

not sequestered, and when the jury was excused for the day on March 8 and 9, 2010, the trial court reminded

the jurors to remember its “admonitions” or “instructions.” The trial court’s final instructions immediately

preceding the jury’s deliberations did not include a warning against communications between the jurors and

the defendant, the attorneys, the witnesses, or other third parties or a warning against the use of electronic

technologies.

-3-

Mitchell had initiated with her on Facebook following her testimony on March 9, 2010.3 The

subject of Dr. Lewis’s email was “Facebook,” and the email stated:

Judge Norman,

I can’t send you actual copies of the emails since Facebook is

blocked from my computer here at work, but here is a transcript:

Scott Mitchell: “A-dele!! I thought you did a great job today on

the witness stand . . . I was in the jury . . . not sure if you

recognized me or not!! You really explained things so great!!”

Adele Maurer Lewis: “I was thinking that was you. There is a

risk of a mistrial if that gets out.”

Scott Mitchell: “I know . . . I didn’t say anything about you . .

. there are 3 of us on the jury from Vandy and one is a physician

(cardiologist) so you may know him as well. It has been an

interesting case to say the least.”

I regret responding to his email at all, but regardless I felt that

this was a fairly serious violation of his responsibilities as a

juror and that I needed to make you and General Miller aware.

I did not recognize the above-referenced cardiologist or any

other jurors.

Adele Lewis, MD

We do not know exactly when or how the trial judge told the attorneys about Dr. Lewis’s

email, but the record reflects that the judge told the lawyers about the email at some point.

We also do not know whether the judge and the attorneys discussed the email during the

jury’s deliberations or what occurred during these discussions if they took place.

3

Because the trial court did not inquire further into the nature of Juror Mitchell’s postings on Dr.

Lewis’s Facebook page, the record does not reflect whether his communications were public postings which

others could see and comment on or whether they were private messages from one Facebook user to another.

See Ryan A. Ward, Note, Discovering Facebook: Social Network Subpoenas and the Stored Communications

Act, 24 Harv. J.L. & Tech. 563, 571-74 (2011) (discussing the differences between public postings and

private messages on social networking sites).

-4-

Once their deliberations were finished, the jury returned to the courtroom and

announced that it found Mr. Smith guilty of first degree murder. Immediately after the trial

court excused the jury, the following exchange occurred between Mr. Smith’s counsel and

the trial judge:

MR. ENGLE: Your honor, I wondered if, before the jury

departs the courthouse, if given the events of this morning it

would be appropriate if [t]he Court inquired of this particular

juror regarding any information that he might have acquired

other than what has been made available to [t]he Court?

THE COURT: No, I’m satisfied with the communication

that I have gotten from Dr. Lewis with regard to the matter.

[She] filled us in fully on the matter and [she] told me that is

exactly what was said and I am satisfied with it.

The trial judge then sentenced Mr. Smith to life in prison.

Mr. Smith moved for a new trial. Among other grounds, he argued he was denied a

fair trial because the court forbade him from questioning Juror Mitchell about his exchange

with Dr. Lewis and any other possible violations of the jury’s instructions. The trial court

denied the motion for a new trial without comment.

Mr. Smith raised the issue again on appeal. The Court of Criminal Appeals

characterized the Facebook exchange as “mere interactions” between a juror and a third

person, and upheld the trial court’s decision not to question Juror Mitchell. The court

reasoned that “[t]he trial court has the discretion to determine whether a jury has acted

impartially.” State v. Smith, No. M2010-01384-CCA-R3-CD, 2012 WL 8502564, at *11

(Tenn. Crim. App. Mar. 2, 2012).

Judge Woodall wrote a separate concurring opinion. He emphasized that “[d]irect

communication by a juror to a witness during the course of a trial,” including a Facebook

message, “could never be considered appropriate.” State v. Smith, 2012 WL 8502564, at *11

(Woodall, J., concurring). He also expressed concern that “both the witness and the juror

understood that the communication was improper” and that the trial court failed to conduct

a hearing to question Juror Mitchell and Dr. Lewis under oath “concerning the possibility of

any other similar communication during the trial, and to [admonish them] in open court for

their improper conduct.” State v. Smith, 2012 WL 8502564, at *11-12 (Woodall, J.,

concurring). Judge Woodall also stressed that “[c]ourts must be vigilant to insure that there

is never ‘prejudice to the judicial process’ . . . caused by improper communications from or

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to jurors during the course of a trial.” State v. Smith, 2012 WL 8502564, at *12 (Woodall,

J., concurring) (quoting Tenn. R. App. P. 36(b)).

II.

The right to a trial by jury in both civil and criminal cases is a foundational right

protected by both the federal and state constitutions.4 Far from being a mere procedural

formality, jury trials provide the citizens with the means to exercise their control over the

Judicial Branch in much the same way that the right to vote ensures the citizens’ ultimate

control over the Executive and Legislative Branches. Walsh v. State, 166 S.W.3d 641, 649

(Tenn. 2005) (quoting Blakely v. Washington, 542 U.S. 296, 305-06 (2004)).

The right to a jury trial envisions that all contested factual issues will be decided by

jurors who are unbiased and impartial. Ricketts v. Carter, 918 S.W.2d 419, 421 (Tenn.

1996); Wolf v. Sundquist, 955 S.W.2d 626, 629 (Tenn. Ct. App. 1997). In criminal cases,

“[t]he jury is the property of neither a defendant nor the State.” State v. Smith, 857 S.W.2d

1, 20 (Tenn. 1993). Thus, both the defendant and the State are entitled to a fair trial by an

unbiased and impartial jury. Boyd v. State, 82 Tenn. 161, 168 (1884); State v. Goltz, 111

S.W.3d 1, 4 (Tenn. Crim. App. 2003) (quoting Walden v. State, 542 S.W.2d 635, 637 (Tenn.

Crim. App. 1976)); see also Toombs v. State, 197 Tenn. 229, 231-32, 270 S.W.2d 649, 650

(1954). An unbiased and impartial jury is one that begins the trial with an impartial frame

of mind, that is influenced only by the competent evidence admitted during the trial, and that

bases its verdict on that evidence. Durham v. State, 182 Tenn. 577, 584, 188 S.W.2d 555,

558 (1945); see also State v. Adams, ___ S.W.3d ___, ___, 2013 WL 2102683, at *3 (Tenn.

May 16, 2013).

Trial courts must ensure the integrity of the jury system by holding jurors accountable

to the highest standards of conduct. State v. Jackson, 173 S.W.3d 401, 411 (Tenn. 2005).

Accordingly, courts must discharge any juror who, for any reason, becomes disqualified to

perform his or her duty. Ricketts v. Carter, 918 S.W.2d at 422; Boyd v. State, 82 Tenn. at

167; Walden v. State, 542 S.W.2d at 637. Discharging this obligation not only protects the

fairness of the trial itself, but also promotes and preserves the public’s confidence in the

fairness of the system. State v. Bondurant, 4 S.W.3d 662, 668 (Tenn. 1999) (quoting State

v. Lynn, 924 S.W.2d 892, 898 (Tenn. 1996)); Wade v. Ordway, 60 Tenn. 229, 243-44 (1872);

see also Shew v. Bailey, 37 Tenn. App. 40, 54-55, 260 S.W.2d 362, 368 (1951).

4

See U.S. Const. amends. VI & VII; Tenn. Const. art. I, §§ 6, 9.

-6-

III.

Like judges, jurors must be – and must be perceived to be – disinterested and

impartial. See State v. Hester, 324 S.W.3d 1, 51 (Tenn. 2010); Gribble v. Wilson, 101 Tenn.

612, 615, 49 S.W. 736, 736 (1899). Because a fair trial requires that jurors base their verdict

solely on the evidence introduced at trial, State. v. Adams, ___ S.W.3d at ___, 2013 WL

2102683, at *3; State v. Davidson, 121 S.W.3d 600, 612-13 (Tenn. 2003); Citizens’ St. R.R.

Co. v. Burke, 98 Tenn. 650, 653, 40 S.W. 1085, 1085 (1897), Tennessee courts have long

employed sequestration to protect jurors from outside influences. See State v. Bondurant,

4 S.W.3d at 670-71.

While courts have a duty to prevent jurors, “charged with the life or liberty of a

citizen, from mingling with the community during their deliberations,” Cochran v. State, 26

Tenn. (7 Hum.) 544, 547 (1847), it is virtually impossible to shield jurors from every contact

and influence that might theoretically affect their decision. Smith v. Phillips, 455 U.S. 209,

217 (1982); Rowe v. State, 30 Tenn. (11 Hum.) 491, 493 (1851) (“[H]owever desirable it may

be to keep a jury as much as possible out of sight and apart from the others, we know that it

is impossible to do so entirely.”); Caldararo ex rel. Caldararo v. Vanderbilt Univ., 794

S.W.2d 738, 743-44 (Tenn. Ct. App. 1990). Accordingly, we noted over 160 years ago that

the best courts can do is “to have the jury kept together; to see that none speak to them, and

to secure them against any attempt of others to tamper with them.” Rowe v. State, 30 Tenn.

at 494.

Jury sequestration is now the exception rather than the general rule in Tennessee.

However, the circumstances and considerations that originally prompted sequestration remain

valid today. To assure that juries base their decisions on the evidence properly admitted

during the trial, it is necessary to limit the ability of third parties to influence jurors and to

limit the ability of jurors to initiate extra-judicial communications with third parties.

When a trial court learns that an extra-judicial communication between a juror and a

third-party has occurred, the court must take steps to assure that the juror has not been

exposed to extraneous information or has not been improperly influenced. In most

circumstances, the appropriate first step is to conduct a hearing in open court in the presence

of the defendant to place the facts in the record and to determine on the record whether cause

exists to find that the juror should be disqualified. Whitmore v. Ball, 77 Tenn. 35, 37 (1882);

Smith v. State, 566 S.W.2d 553, 559-60 (Tenn. Crim. App. 1978).5 As the Court of Appeals

5

Circumstances can arise in which the juror’s extra-judicial communication with a third-party or

exposure to improper influence will not be discovered until after the jury has rendered its verdict and has

been discharged. In that case, the issue must be raised in a properly supported motion for a new trial. When

(continued...)

-7-

has noted, when misconduct involving a juror is brought to a trial court’s attention, “it [is]

well within [the judge’s] power and authority to launch a full scale investigation by

summoning . . . all the affiants and other members of the jury, if need be, with a view of

getting to the bottom of the matter, and this, if necessary, upon [the judge’s] own motion.”

Shew v. Bailey, 260 S.W.2d at 368.

Because of the potentially prejudicial effect of a juror’s receipt of extraneous

information, the State bears the burden in criminal cases either to explain the conduct of the

juror or the third party or to demonstrate how the conduct was harmless. Error is harmless

when “it appears beyond a reasonable doubt that the error complained of did not contribute

to the verdict obtained.” State v. Brown, 311 S.W.3d 422, 434 (Tenn. 2010) (quoting Neder

v. United States, 527 U.S. 1, 15 (1999)).

When a jury is not sequestered, something more than a showing of an extra-judicial

communication between a juror and a third party is required to shift the burden to the State.

There must also be evidence that, as a result of the extra-judicial communication, some

extraneous prejudicial fact or opinion “was imported to one or more jurors or some outside

improper influence was brought to bear on one or more jurors.” State v. Blackwell, 664

S.W.2d at 689; see also State v. Meade, 942 S.W.2d 561, 565 (Tenn. Crim. App. 1996)

(quoting State v. Clinton, 754 S.W.2d 100, 103 (Tenn. Crim. App. 1988)). Thus, when it is

shown that a juror has been exposed to extraneous prejudicial information or an improper

influence, a rebuttable presumption arises and the burden shifts to the State to explain the

conduct or demonstrate that it was harmless. State v. Adams, ___ S.W.3d at ___, 2013 WL

2102683, at *4; Walsh v. State, 166 S.W.3d 641, 647 (Tenn. 2005).

IV.

The majority of our decisions regarding extra-judicial communications between jurors

and third parties were handed down long before the advent of the Internet, social media,

smart phones, and tablet computers. See, e.g., Odle v. State, 65 Tenn. 159 (1873). These

cases involved one-on-one communications that often occurred in person. David P.

Goldstein, The Appearance of Impropriety and Jurors on Social Networking Sites: Rebooting

the Way Courts Deal with Juror Misconduct, 24 Geo. J. Legal Ethics 589, 594 (2011)

(“Goldstein”) (citing Dennis Edwards, Jr., A Judge’s Review of Juror Misconduct, 27 How.

L.J. 1519, 1537-43 (1984)).

5

(...continued)

the issue is raised in a motion for a new trial, the trial court should permit the parties to present evidence

before deciding whether the challenged juror was disqualified to serve. See State v. Blackwell, 664 S.W.2d

686, 688-89 (Tenn. 1984).

-8-

Today, however, new communications technology has exponentially increased the risk

that jurors will conduct research and investigate the law and facts on their own. See David

E. Aaronson & Sydney M. Patterson, Modernizing Jury Instructions in the Age of Social

Media, 27 Crim. Just., Winter 2013, at 26, 27; John G. Browning, When All That Twitters Is

Not Told: Dangers of the Online Juror, 73 Tex. B.J. 216, 217 (2010); Caren Myers Morrison,

Can the Jury Trial Survive Google?, 25 Crim. Just., Winter 2011, at 4, 5. It has also

increased the risk of extra-judicial communications between jurors and third parties. See

State v. Goupil, 908 A.2d 1256, 1262-67 (N.H. 2006); Commonwealth v. Werner, 967 N.E.2d

159, 167 (Mass. App. Ct. 2012); Goldstein, 24 Geo. J. Legal Ethics at 589-90; see also Amy

J. St. Eve & Michael A. Zuckerman, Ensuring an Impartial Jury in the Age of Social Media,

11 Duke L. & Tech. Rev. 1, 8-11 (2012) (“St. Eve & Zuckerman”).

Addressing the nationwide problem facing both the federal and state courts, Judge

Julio Fuentes of the United States Court of Appeals for the Third Circuit has recently noted:

Not unlike a juror who speaks with friends or family members

about a trial before the verdict is returned, a juror who

comments about a case on the internet or social media may

engender responses that include extraneous information about

the case, or attempts to exercise persuasion and influence. If

anything, the risk of such prejudicial communication may be

greater when a juror comments on a blog or social media

website than when she has a discussion about the case in person,

given that the universe of individuals who are able to see and

respond to a comment on Facebook or a blog is significantly

larger.

United States v. Fumo, 655 F.3d 288, 305 (3d Cir. 2011), as amended (Sept. 15, 2011).

Writing separately, Judge Richard Nygaard also observed that jurors are tweeting,

“conducting factual research online, looking up legal definitions, investigating likely prison

sentences for a criminal defendant, visiting scenes of crimes via satellite images, blogging

about their own experiences and sometimes even reaching out to parties and witnesses

through ‘Facebook friend’ requests.” Social media websites and applications have “made

it quicker and easier to engage more privately in juror misconduct, compromise the secrecy

of [jury] deliberations, and abase the sanctity of the decision-making process.” United States

v. Fumo, 655 F.3d at 332 (Nygaard, J., concurring and dissenting).

Even though technology has made it easier for jurors to communicate with third

parties and has made these communications more difficult to detect, our pre-internet

precedents provide appropriate principles and procedures to address extra-judicial

communications, even when they occur on social media websites and applications such as

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Facebook. Accordingly, we will apply the principles and procedures discussed in State v.

Adams,___ S.W.3d at ___, Walsh v. State, 166 S.W.3d at 646-50, and State v. Blackwell, 664

S.W.2d at 688-89, to this case.

V.

The first step of the analysis is to determine whether the trial court received reliable

and admissible evidence that an extra-judicial communication between a juror and a third

party occurred. Here, Dr. Lewis’s email to the trial court provides proof that such a

communication between her and Juror Mitchell did, in fact, occur. In addition, because the

information in the email related to potentially prejudicial external influences,6 rather than the

jury’s deliberations or the juror’s thought processes, the contents of the email were

admissible under Tenn. R. Evid. 606(b). State v. Adams, ___ S.W.3d at ___, 2013 WL

2102683, at *4. This evidence was sufficient to trigger the rebuttable presumption of

prejudice to Mr. Smith, thereby requiring the State to explain the conduct or to demonstrate

that it was harmless.

This appeal focuses on the trial court’s decision not to conduct a hearing or to

otherwise inquire into the circumstances after being informed of Juror Mitchell’s Facebook

communications with Dr. Lewis. While appellate courts review a trial court’s decision

regarding the disqualification of a particular juror using the abuse of discretion standard, see

State v. Goltz, 111 S.W.3d at 5, we have determined that the potential risk of prejudice to the

judicial process requires appellate courts to review de novo a trial court’s decision not to

conduct a hearing or to inquire further when the court receives reliable information that a

juror has had extra-judicial communications with a third party during the trial.

When the trial court received competent and reliable evidence that an extra-judicial

communication between a juror and a State’s witness had taken place during the trial, it was

required to do more than simply inform the parties about the email and then await the jury’s

verdict. The trial court erred by failing to immediately conduct a hearing in open court to

obtain all the relevant facts surrounding the extra-judicial communication between Dr. Lewis

and Juror Mitchell. This hearing may very well have necessitated calling both Juror Mitchell

and Dr. Lewis to testify under oath about their relationship and the effect of the

communication on Juror Mitchell’s ability to serve as a juror. Because the contents of the

email focus only on events occurring before the jury received its instructions and retired to

deliberate, the court may also have been required to call other members of the jury to

determine whether Juror Mitchell shared any extraneous information with other jurors.

6

Potentially prejudicial external influences include a juror’s communications with non-jurors about

the case. Carruthers v. State, 145 S.W.3d 85, 92 (Tenn. Crim. App. 2003) (quoting Caldararo ex rel.

Caldararo v. Vanderbilt Univ., 794 S.W.2d at 742)).

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State v. Blackwell illustrates the proper approach to be taken when other jurors may

possess relevant information. Following his conviction for selling alcoholic beverages to a

minor, Ronnie Blackwell filed a motion for a new trial stating that two jurors had disclosed

that one of their fellow jurors had talked with the minor’s mother in the hallway during the

trial and then had told the other jurors during their deliberations that the defendant was

guilty. State v. Blackwell, 664 S.W.2d at 688. The trial court permitted the two jurors to

testify during the hearing on the motion for a new trial. State v. Blackwell, 664 S.W.2d at

688. This Court granted Mr. Blackwell a new trial after finding that the evidence provided

by the two jurors demonstrated both that a private extra-judicial communication with a juror

had occurred and that this communication resulted in the jury receiving extraneous

prejudicial information. State v. Blackwell, 664 S.W.2d 689-90.

Not every extra-judicial communication between a juror and a third-party requires the

court to disqualify the juror, declare a mistrial, or grant a new trial. These remedies are

required only when the extra-judicial communication is prejudicial to the defendant and is

not harmless error. This is true even when the non-juror is a party, a witness, or someone

otherwise interested in the case. See State v. Pappas, 754 S.W.2d 620, 625 (Tenn. Crim.

App. 1987) (juror’s contact with victim was an “idle comment” that did not prejudice the

proceedings).

Because the trial court failed to hold a hearing or to make findings of fact and

conclusions of law, this record is inadequate for us to determine whether the extra-judicial

communication between Dr. Lewis and Juror Mitchell was not prejudicial. We do not know,

for example, the full nature of their relationship and whether their relationship would have

required Juror Mitchell’s disqualification.7 Because neither Juror Mitchell nor any of his

fellow jurors were questioned, the record contains no information regarding whether Juror

Mitchell passed along extraneous prejudicial information to the other members of the jury.

When a trial court fails to hold an evidentiary hearing to inquire into juror misconduct,

the proper remedy is to remand the case for such a hearing. See Remmer v. United States,

347 U.S. 227, 229-30 (1954); United States v. Guthrie, 387 F.2d 569, 572 (4th Cir. 1967);

State v. Roman, 817 A.2d 100, 107 (Conn. 2003). At the hearing, questioning of the juror

should include: “(1) the subject matter of the contact, (2) to whom it was directed, (3) the

medium of the exchange, (4) whether any responses were received, and (5) the content of the

communications.” See J. Paul Zimmerman, A Practical Guide to the Development of Jury

Charges Regarding Social Media, 36 Am. J. Trial Advoc. 641, 642 (2013). On remand, if

the hearing reveals that juror misconduct resulted in prejudice, a new trial must be granted.

See Remmer v. United States, 347 U.S. at 230; Caliendo v. Warden of California Men’s

7

Persons whose associations, experiences, and interests could sway their judgment have been

historically excused from jury service. See Durham v. State, 188 S.W.2d at 559.

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Colony, 365 F.3d 691, 699 (9th Cir. 2004); Simants v. State, 277 N.W.2d 217, 223 (Neb.

1979).

Accordingly, the portion of the trial court’s order that denies Mr. Smith’s motion for

a new trial based on Juror Mitchell’s improper extra-judicial communication with Dr. Lewis

is vacated. The case is remanded to the trial court to conduct a hearing to determine whether

Juror Mitchell’s Facebook communication with Dr. Lewis disqualified him from continuing

to serve on Mr. Smith’s jury. Following this hearing, the trial court shall make findings of

fact and conclusions of law regarding whether the challenged communication requires Juror

Mitchell’s disqualification or whether Juror Mitchell’s misconduct was harmless beyond a

reasonable doubt. If, for any reason, the trial court is unable to conduct a full and fair

hearing with regard to Juror Mitchell’s improper extra-judicial communication with Dr.

Lewis, then the trial court shall grant Mr. Smith a new trial.

VI.

The American judicial system “depends upon public confidence in the jury’s verdict.”

United States v. Siegelman, 640 F.3d 1159, 1186 (11th Cir. 2011). Commentators are now

warning that “the unseemliness of jurors using Facebook or Twitter to discuss their jury

service may spawn public doubt about the capacity of the modern jury system to achieve

justice.” St. Eve & Zuckerman, 11 Duke L. & Tech. Rev. at 12. Being selected to serve on

a jury is “the highest obligation of citizenship” and a privilege. Walsh v. State, 166 S.W.3d

at 650 (quoting Carruthers v. State, 145 S.W.3d at 93). But the “fundamental right of a fair

trial cannot be guaranteed if jurors fail to take their obligations seriously and disregard their

oaths to follow the court’s rules.” People v. Rios, 907 N.Y.S.2d 440 (N.Y. Sup. Ct. 2010),

aff’d, 930 N.Y.S.2d 180 (N.Y. App. Div. 2011).

The facts of this case demonstrate that this technological age now requires trial courts

to take additional precautions to assure that jurors understand their obligation to base their

decisions only on the evidence admitted in court. Trial courts should give jurors specific,

understandable instructions that prohibit extra-judicial communications with third parties and

the use of technology to obtain facts that have not been presented in evidence.8 Trial courts

8

After a juror wrote postings about a trial on Facebook, the Court of Appeals of Massachusetts noted:

Apparently, even these instructions were not enough to keep jurors from at least alluding to

their jury service on social media Web sites. More explicit instructions about the use of

social media and the Internet may therefore be required. Instructions not to talk or chat

about the case should expressly extend to electronic communications and social media, and

discussions about the use of the Internet should expressly go beyond prohibitions on

research. Jurors should not research, describe, or discuss the case on- or off-line. Jurors

(continued...)

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should clearly prohibit jurors’ use of devices such as smart phones and tablet computers to

access social media websites or applications to discuss, communicate, or research anything

about the trial.9 In addition, trial courts should inform jurors that their failure to adhere to

these prohibitions may result in a mistrial and could expose them to a citation for contempt.

Trial courts should deliver these instructions and admonitions on more than one occasion.10

VII.

Because the trial court erred by failing to hold an evidentiary hearing to ascertain the

nature and extent of the improper communications exchanged between Juror Mitchell and

Dr. Lewis, we vacate the judgment of the Court of Criminal Appeals and the order of the trial

court denying Mr. Smith’s motion for a new trial on the ground of juror bias and remand this

8

(...continued)

must separate and insulate their jury service from their digital lives.

Commonwealth v. Werner, 967 N.E.2d at 168 (footnotes omitted).

On January 28, 2010, the federal Judicial Conference Committee on Court Administration and Case

Management issued model jury instructions to help deter jurors from using electronic technologies to research

or communicate about cases on which they serve. See Committee on Court Administration and Case

Management of the Judicial Conference of the United States, Memorandum: Juror Use of Electronic

Communication Technologies (2010), available at http://federalevidence.com/downloads/blog/2010/

Memorandum.On.Juror.Use.Of.Electronic.Communication.Technologies.pdf. A majority of the judges

responding to a 2011 survey by the Federal Judicial Center stated that they were taking preventative measures

to deter jurors’ misuse of electronic technologies in their courtrooms. These measures included the model

jury instructions or similar instructions from other sources. See Meghan Dunn, Jurors’ Use of Social Media

During Trials and Deliberations 5-7 (2011) (“Federal Judicial Center Survey”), available at

http://www.fjc.gov/public/pdf.nsf/lookup/dunnjuror.pdf/$file/dunnjuror.pdf.

9

In 2010, after the trial in this case was completed, the Committees on Pattern Jury Instructions

approved instructions for both criminal and civil proceedings intended to deter jurors from using electronic

technologies to conduct legal or factual research or to communicate about the cases on which they were

serving. See 8 Tennessee Pattern Jury Instructions-Civil §§ 1.02, 15.20 (10th ed. 2010); 7 Tennessee Pattern

Jury Instructions-Criminal §§ 1.09, 43.14 (14th ed. 2010). These instructions were patterned after the

instructions prepared by the Committee on Court Administration and Case Management of the Judicial

Conference of the United States.

10

Amanda McGee, Note, Juror Misconduct in the Twenty-First Century: The Prevalence of the

Internet and Its Effect on American Courtrooms, 30 Loy. L.A. Ent. L. Rev. 301, 317 (2010). A majority of

the judges responding to the Federal Judicial Center’s 2011 survey who stated that they used the model

instructions or instructions from other sources reported that they used the instructions in both civil and

criminal trials and that they instructed the jury on the issue both before the trial began and again before

deliberations began. Federal Judicial Center Survey, supra n.8, at 6.

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case to the trial court for an evidentiary hearing consistent with this opinion. The costs of

this appeal are taxed to the State of Tennessee.

________________________________

WILLIAM C. KOCH, JR., JUSTICE

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