State of Tennessee v. Tim Gilbert

12/03/2021

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

August 10, 2021 Session

STATE OF TENNESSEE v. TIM GILBERT

Appeal from the Circuit Court for Giles County

No. CR-14803 Stella Hargrove, Judge

No. M2020-01241-CCA-R3-CD

The defendant, Tim Gilbert, appeals his Giles County Circuit Court Jury convictions of

aggravated assault, reckless endangerment, unlawful possession of a weapon by a

convicted felon, and resisting arrest, challenging the sufficiency of the convicting evidence

and the rulings of the trial court permitting the State to amend the indictment and to admit

the pretrial statement of a State’s witness as substantive evidence in violation of the rule

against hearsay. The defendant also argues that permitting both the grand and petit juries

to deliberate in a room in the Giles County Courthouse maintained by the United Daughters

of the Confederacy (“U.D.C.”) and adorned with various mementos of the Confederacy

exposed the jury to extraneous prejudicial information and violated his constitutional rights

to a fair trial conducted by an impartial jury, due process, and equal protection under the

law. The trial court did not err by permitting the State to amend the indictment because

the amendment did not allege a new or different offense. The court did err, however, by

admitting the challenged witness statement, and that error cannot be classified as harmless.

Further, we conclude that the Confederate memorabilia in the jury room was extraneous

information and that the State failed to rebut the presumption that the petit jury’s exposure

to that extraneous information was prejudicial. Accordingly, we reverse the judgments of

the trial court and remand the case for a new trial.

Tenn. R. App. P. 3; Judgments of the Circuit Court Reversed and Remanded

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which CAMILLE R.

MCMULLEN, and J. ROSS DYER, JJ., joined.

Evan Baddour, Pulaski, Tennessee, for the appellant, Tim Gilbert.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Assistant

Attorney General; Brent Cooper, District Attorney General; and Rebecca S. Parsons,

Assistant District Attorney General, for the appellee, State of Tennessee.

Jonathan Harwell, Richard Tennent, and Michael Working, Nashville, Tennessee, for the

Amicus Curiae, Tennessee Association of Criminal Defense Lawyers.

OPINION

In April 2019, the Giles County Grand Jury charged the defendant with the

aggravated assault of Rotosha Coffey, reckless endangerment, unlawful possession of a

firearm after having been convicted of a felony, and resisting arrest for his conduct on

December 24, 2018.

At the March 2020 trial, Ms. Coffey testified that on December 24, 2018, she

and the defendant went shopping in Murfreesboro and then to Ms. Coffey’s “sister’s

boyfriend’s house.” Later, Ms. Coffey went to the defendant’s residence to celebrate the

holiday with the defendant and their daughter, Chastity Gilbert. Ms. Gilbert’s boyfriend,

Chris Burgess, the defendant’s brother, Roger Gilbert, Roger Gilbert’s girlfriend, the

defendant’s niece, Brooklyn, “and some other white guy” were also at the gathering. Ms.

Coffey, who acknowledged having consumed tequila and beer, said that the defendant “had

tequila.” Ms. Coffey recalled that when she “was playing with” the defendant’s niece and

“hitting her on her butt,” the defendant became angry and told Ms. Coffey to leave. She

testified that she left and that the defendant followed her out the door. Ms. Coffey claimed

that the defendant pushed and choked her but “finally stopped,” so she “went in the house

to get my keys and my plate of food . . . but he jerked the plate of food out of my hand and

threw it against the door.” Ms. Coffey retrieved her keys and left the house.

Ms. Coffey testified that she got into her vehicle and drove “towards Well

church” but decided to turn around because “I’m thinking Chastity and [the defendant] are

going to get into it.” She added, “I knew Chastity had got pissed off and she was going to

be fussing with her daddy about me.” When Ms. Coffey reached the defendant’s residence,

Mr. Burgess, who was standing outside, told her to leave. The defendant was standing in

front of the house. Ms. Coffey said that she drove away and that, as she did so, she heard

“[p]ow, pow, pow.” She testified that she stopped her vehicle briefly because the sound

scared her. She eventually drove home. When she returned to her own residence, she

telephoned the police.

When the police arrived, she went with them to inspect her vehicle and

observed “a skid mark on my door . . . and a little piece was off of it. Like a dent and a

skid mark.” She said that, to her knowledge, the mark was not on her car before she went

to the defendant’s residence.

Ms. Coffey testified that she thought she might have seen “some handgun”

on the table in the defendant’s residence on the day of the offenses “or the day before.”

-2-

She said that she had “seen a case” for a gun but could not say “if it was that day or the day

before.” She claimed that she had asked the defendant why he had a gun but could not

remember what he had said in response.

During cross-examination, Ms. Coffey acknowledged that it was possible

that the mark could have been on her car before she went to the defendant’s house,

explaining, “I don’t ever get on the passenger side of the car.” Ms. Coffey also

acknowledged that she was upset with the defendant because she had been asked to leave

the family gathering on Christmas Eve and that she was not scared when she called the

police but “was more mad than anything.” Ms. Coffey testified that she did not see Ms.

Gilbert outside when she returned to the defendant’s residence.

The defendant’s daughter, Chastity Gilbert, testified that on Christmas 2018

she and her boyfriend took their son to visit the defendant. Ms. Coffey, who is Ms.

Gilbert’s mother, was also there, as were “a couple other people.” Ms. Gilbert said that

when Ms. Coffey and the defendant “got into it, he asked her to leave.” Ms. Gilbert said,

“I don’t really know what actually happened of the argument. I just know he told her to -

- he wanted her to leave. So she was getting herself together to leave.” Ms. Coffey left

but came back inside shortly thereafter because she had forgotten her keys. Ms. Gilbert

recalled that when Ms. Coffey came back inside, the defendant smacked a plate of food out

of her hand. Ms. Gilbert testified that she asked the defendant why he had done that, and

he said something about Ms. Coffey’s behavior. At that point, Ms. Coffey left, and then

Ms. Gilbert “went and grabbed my son and we left.” She said that she “just didn’t like the

fact that he done that to her so I just wanted to leave.”

As Ms. Gilbert prepared to leave, she saw that her mother had driven back

“to make sure that we were I guess okay or something of the sort.” Ms. Gilbert said that

she did not hear the defendant make any comment when Ms. Coffey returned and said that

she did not “believe” that she had told the police that the defendant commented that if Ms.

Coffey “comes back out here, she’s not going to leave.” She acknowledged having

provided a recorded statement to the police on December 25, 2018. Ms. Gilbert conceded

that she told the police that “I think he said something like I don’t -- basically he didn’t

want her to be back out there. He told her to leave. He asked her to leave and he didn’t

want her back out at his house.” She said that she did not recall specifically telling the

police that the defendant said that if Ms. Coffey returned, “she’s not going to leave.” Ms.

Gilbert testified that when Ms. Coffey returned, Mr. Burgess “leaned out the door and he

tells her to leave.” Ms. Gilbert said that, at that point, she “heard a noise but I wasn’t for

sure what it was.” Ms. Gilbert recalled telling the police that she told the defendant “you’re

not going to do anything to my mama, that’s my mama.” She explained, “Well, I mean,

the reason I said that is, for one, he had already smacked the plate out of my mama’s hand,

so that was basically an altercation. I didn’t want it to escalate further. That’s my mother

-3-

and that’s my father.”

Ms. Gilbert denied having told the police that the defendant started shooting,

saying, “I didn’t say shooting because I didn’t see him with no gun in his hand. I said I

heard a noise and I heard them saying ‘Tim’ like calling my daddy’s name.” She denied

having heard anyone tell the defendant to “put the gun down” but admitted that she told

officers that the defendant had shot directly at Ms. Coffey. She added, “But the only reason

I said that is later -- well, before I even talked to Officer [Cory] Medley, I seen my mother’s

car, so I assumed, since I seen something like that, he had shot at her, or whatever.” Ms.

Gilbert said that she did not “think” that she told officers that the defendant began shooting

when Ms. Coffey turned by the church, saying that they were “already facing towards

where the church was. She rode past and kept going while we were getting in the car.”

Ms. Gilbert testified that the defendant’s Cadillac was parked “on the front

side of the house” but said that she did not “think” she had told officers that the defendant

“came out of the trunk with a gun.” After the State played a portion of the audio recording

wherein Ms. Gilbert told Officer Medley that the defendant said “if she comes back out

here, she’s not going to leave,” Ms. Gilbert acknowledged having made the statement.

Upon hearing another portion of the audio recording, Ms. Gilbert again acknowledged

having told Officer Medley that the defendant was shooting and explained that “the only

reason I even said that is because I had seen my mother’s car so I just assumed since what

it had on it, he had shot at her.” Upon hearing other portions from the recording, Ms.

Gilbert admitted that she told Officer Medley that she heard others tell the defendant to put

the gun down. Ms. Gilbert also admitted telling Officer Medley that the defendant came

out of the trunk with a gun but insisted that she “didn’t see him come out of no trunk with

no gun,” “[n]ot with my own eyes.”

Ms. Gilbert acknowledged that she did not want to be in court and did not

want to testify against the defendant. She admitted that the defendant supported her

financially.

During cross-examination, Ms. Gilbert said that Ms. Coffey had been

drinking on the day of the offenses. She explained that, when she told Officer Medley that

Ms. Coffey had turned by the church, she was referring only to the sharp bend in the road

near the church. She testified that the reason she told Officer Medley that the defendant

had shot at Ms. Coffey was because she saw the mark on Ms. Coffey’s car.

Pulaski Police Department Officer Cory Medley testified that he spoke with

Ms. Coffey at her residence on December 24, 2018, after she telephoned 9-1-1. He said

that because Ms. Coffey was obviously intoxicated, he decided “to get a driver to bring the

vehicle to the police department” while he “transported Ms. Coffey to the police

-4-

department in my patrol vehicle.” Officer Medley recalled that Ms. Coffey’s vehicle, a

black SUV, had a defect that, in his opinion as a police officer, had been caused by a bullet.

Officer Medley attempted to interview Ms. Coffey at the police station, but “it was

determined that she was intoxicated,” so officers elected “to bring her back in for another

interview on December 25, 2018.”

Officer Medley testified that, following his interview with Ms. Coffey and

his inspection of her vehicle on December 24, 2018, he went to the defendant’s Keller

Avenue residence with Lieutenant Justin Young to investigate. While there, Lieutenant

Young “informed me that he had located some shell casings in the front yard of 1818 Keller

Avenue.” Officer Medley identified at trial the four .40 caliber shell casings that were

collected by Lieutenant Joey Turner, who had also gone to the residence. In addition to

collecting the shell casings, Officer Medley attempted to speak to the defendant’s brother,

Roger Gilbert, but Mr. Gilbert “[d]idn’t really want to talk to me. And the rest of them

was pretty uncooperative.”

Based upon the information amassed during his investigation, Officer

Medley obtained a warrant for the defendant’s arrest on charges of “aggravated assault,

reckless endangerment, and felon in possession of a handgun.” He attempted to serve the

warrant at the defendant’s residence on December 25, 2018. Officer Medley said that he

“knocked on the door and [the defendant] answered the door. I informed him that I had a

warrant and he was going to have to go with me.” Officer Medley testified that the

defendant “started walking back into the residence,” so Officer Medley “grabbed his left

arm to attempt to put a handcuff on it. He started to spin away from me.” At that point,

Sergeant Jereme Robison, who had gone to the residence with Officer Medley, “came into

the residence and grabbed a hold of” the defendant, and the three of them “ended up on the

ground.” The defendant “placed his arms underneath his body” and began “forcefully

pulling away from us,” so the officers “had to forcefully put his hand behind his back to

place handcuffs on him.” Officer Medley explained that he initially grabbed the defendant

because “the incident involved a firearm, so, of course, we didn’t want nobody to get out

of our sight.”

The State exhibited to Officer Medley’s testimony a certified copy of the

defendant’s 2001 Giles County conviction for the possession of less than .5 grams of

cocaine, a felony.

During cross-examination, Officer Medley acknowledged that he was not

outside when Lieutenant Young located the shell casings. Instead, Lieutenant Young

advised him of the discovery while he was inside the residence attempting to interview Mr.

Gilbert. Officer Medley said that he photographed the casings, which were located “[i]n

the grass area close to the front door,” where they lay before Lieutenant Turner collected

-5-

them. Officer Medley said that he did not ask for permission to search the residence or the

defendant’s Cadillac and that he did not request forensic testing in this case. He admitted

that he did not interview any of the neighbors. Officer Medley conceded that he “could

tell” that Ms. Coffey was intoxicated during the December 24, 2018 interview. He

acknowledged that although police officers “removed the door panel” from Ms. Coffey’s

car, they were “unable to locate the bullet fragments.” He also acknowledged that it was

possible that the shell casings had been in the defendant’s yard for some time.

During redirect examination, Officer Medley agreed that the shell casings

recovered from the defendant’s yard appeared “relatively shiny and new.”

Lieutenant Joey Turner testified that he recovered four shell casings from the

defendant’s front yard on December 24, 2018. During cross-examination, he said that he

was in the kitchen area of the residence when he “was notified to come outside, that shell

casings had been found in the front yard.” He said that police officers “tried several

different ways” but were unable to locate a “projectile” in Ms. Coffey’s vehicle. He said

that the Pulaski Police Department did not have access to lead testing equipment or

trajectory rods that might have aided them in the determination whether the defect in Ms.

Coffey’s vehicle had been, in fact, caused by a bullet. Despite this, Lieutenant Turner

testified during redirect-examination that it was his professional opinion that the defect had

been caused by a bullet.

Chris Burgess testified on behalf of the defendant that on December 24,

2018, the defendant and Ms. Coffey were “arguing and [the defendant] asked her to leave

and they just got into, like, just a little argument and we grabbed our little boy and put him

in the car and left.” He recalled that, after initially leaving, Ms. Coffey “circled around the

block” and “then when she pulled back up,” Mr. Burgess told her to “just leave, you know,

because there’s no sense in arguing.” He said that, to his knowledge, no one fired any shots

on that day. Mr. Burgess testified that he and Ms. Gilbert “pulled out right behind” Ms.

Coffey. He agreed that he had told Officer Medley that nothing else had happened on the

day of the incident.

During cross-examination, Mr. Burgess agreed that he had told Officer

Medley that he did not want to get involved in this case. He denied that the defendant paid

his bills but agreed that if Ms. Gilbert asked the defendant “for something, he gives her

money.”

During redirect-examination, Mr. Burgess said that he and Ms. Gilbert had

their own home and that he worked. He said that the defendant had never asked him to

testify in return for money.

-6-

The defendant testified that he did not have or fire a gun on Christmas Eve

2018. He said that, on that day, he and Ms. Coffey went Christmas shopping in

Murfreesboro. After they returned to the defendant’s house, Ms. Coffey expressed a desire

to go to her sister’s house. He decided to take a separate car because Ms. Coffey “got to

getting drunk” and he did not “like to be around drunk people because they get to

aggravating and, you know, just starting a bunch of old mess.” The defendant returned

home before Ms. Coffey, who arrived “[a]bout an hour later” “drunk, stumbling all through

the house.”

The defendant testified that when Ms. Coffey “kept on hitting on [him]

while” he and his niece were using the computer, he told Ms. Coffey to leave because he

did not want to be around her while she was drinking. He said that they began to argue

because Ms. Coffey “keep telling me she’s not going to leave.” He testified that Ms. Coffey

“hit me, then pushed me, and I grabbed her and pushed her out the door.” When Ms. Coffey

tried to come back inside, he asked her what she wanted, and “[s]he said, ‘I want my food.”

The defendant said that he “come back with her food, going to give it [to] her. She hits me

again so I threw it [a]t her.” Ms. Coffey then got into her vehicle, and the defendant walked

to the end of the sidewalk, at which point “she tries to run over me.” The defendant said

that he ran into the house, and Ms. Coffey “come back in [the] door. We get to arguing

again. I push her out the door.” At that point, Ms. Gilbert began to argue with the defendant

about his treatment of Ms. Coffey, so he told her “if she don’t like it and can’t respect my

decision, then you can leave.” The defendant said that both Ms. Coffey and Ms. Gilbert

left.

The defendant testified that on the following day, Christmas Day, he went to

a Christmas gathering at his sister’s house and returned home between 8:30 and 9:00 p.m.

After he had been home “maybe five or ten minutes,” Officer Medley arrived and said that

officers needed to talk to him. The defendant said that he “opened the door, basically

welcoming them on in my house.” As he walked “across the living room floor . . . a couple

steps in front of them,” the defendant looked into a mirror and saw Officer Medley “taking

his handcuffs out.” The defendant insisted that, “when I turned around to face him and ask

him what he’s doing, he’s trying to handcuff me.” The defendant maintained that Officer

Medley did not, at any point, tell him that he was under arrest or show him an arrest

warrant. He admitted that, initially, he “wouldn’t let” the officer handcuff him but said

that he eventually acquiesced. He claimed that, as soon as he allowed himself to be

handcuffed, Officer Medley “and his partner throw me in the floor, beats me up, fractured

my skull.” He said that the officers “mess[ed] my back up” so that it “will never be right

anymore.”

Officer Medley admitted on rebuttal that he did not tell the defendant at any

point that he was under arrest. Instead, he explained, “I told him he had a warrant and he

-7-

was going to go with me.”

Based upon this evidence, the jury convicted the defendant as charged of

aggravated assault, reckless endangerment, unlawful possession of a weapon after having

been previously convicted of a felony, and resisting arrest. Following a sentencing hearing,

the trial court imposed a total effective sentence of six years’ incarceration.

The defendant filed a timely but unsuccessful motion for new trial followed

by a timely notice of appeal. In this appeal, the defendant contends that the trial court erred

by permitting the State to amend Count 1 of the indictment over his objection. He also

asserts that the trial court erred by admitting into evidence Ms. Gilbert’s audio recorded

statement to Officer Medley, arguing that the State called Ms. Gilbert for the primary

purpose of admitting the otherwise inadmissible statement and that the State failed to

satisfy the requirements for its admission as substantive evidence via Tennessee Rule of

Evidence 803(26). The defendant challenges the sufficiency of the convicting evidence on

grounds that the State failed to establish that he possessed, used, or displayed a firearm on

the day of the offense. The defendant also avers that using a room maintained by the

U.D.C. and ornamented with relics of the Confederacy for jury deliberations exposed the

jury to extraneous prejudicial information and violated his constitutional rights to a fair

trial by an impartial jury, due process, and equal protection under the law. Finally, he

contends that the cumulative effect of the errors at trial entitle him to a new trial. We

consider each claim in turn.

I. Amendment of Indictment

On the first day of trial, the State moved to amend Count 1 of the indictment

to include the “use of” a deadly weapon in addition to the “display of” a deadly weapon.

The defendant objected on grounds that the amendment was untimely and that it was more

than a technical amendment in that it actually altered the charged offense. The defendant

noted that permitting the change would “destroy[] the primary defense . . . that he didn’t

cause her fear by display.” The trial court concluded that “it is a technical amendment,”

noting that the State had asked to add “use” and not to change “display” to “use.”

“Without the defendant’s consent and before jeopardy attaches, the court

may permit such an amendment if no additional or different offense is charged and no

substantial right of the defendant is prejudiced.” Tenn. R. Crim. P. 7(b)(2). That being

said, however, “an indictment may not be amended ‘by broadening the possible bases for

conviction from that which appears in the indictment.’” State v. Lindsey, 208 S.W.3d 432,

440 (Tenn. Crim. App. 2006) (quoting United States v. Miller, 471 U.S. 130, 138 (1985))

(emphasis in Miller); see also Stirone v. United States, 361 U.S. 212, 215-17 (1960) (stating

that “after an indictment has been returned its charges may not be broadened through

-8-

amendment except by the grand jury itself”). A trial court’s ruling on a motion to amend

an indictment is reviewed for an abuse of discretion. State v. Kennedy, 10 S.W.3d 280,

283 (Tenn. Crim. App. 1999).

Here, the indictment originally read:

The Grand Jurors of Giles County, Tennessee, duly impaneled,

and sworn upon their oath, present: That TIM GILBERT on

or about the 24th day of December, 2018, in Giles County,

Tennessee and before the finding of this indictment, did

unlawfully, intentionally or knowingly by the display of a

deadly weapon, to-wit: a handgun, cause Rotosha Coffey to

reasonably fear imminent bodily injury by firing said gun in

the presence of Rotosha Coffey, in violation of Tennessee

Code Annotated Section 39-13-102, all of which is against the

peace and dignity of the State of Tennessee.

Following the amendment, the charge alleged that the defendant committed the offense of

aggravated assault “by the use or display of a deadly weapon” and retained the language

alleging that he did so “by firing said gun in the presence of” Ms. Coffey. In our view, the

inclusion of the phrase “by firing said gun” necessarily implicated the “use” of a firearm,

and, consequently, the indictment as originally drafted charged the defendant with the use

of a firearm, albeit without specifically including the word “use.” Consequently, the trial

court did not err by permitting the amendment because the amendment “complained of

added nothing new to the grand jury’s indictment and constituted no broadening.” Miller,

471 U.S. at 145.

II. Ms. Gilbert’s Recorded Statement

The defendant next asserts that the trial court erred by permitting the State to

call Ms. Gilbert for the primary purpose of admitting her otherwise inadmissible statement

to Officer Medley and to admit the entire audio recording of Ms. Gilbert’s statement as

substantive evidence via Tennessee Rule of Evidence 803(26). The State contends that the

defendant waived plenary consideration of this issue by failing to lodge a contemporaneous

objection. In the alternative, the State avers that the trial court did not err.

Prior to trial, the defendant moved the trial court to exclude the statements

provided to Officer Medley by both Ms. Gilbert and Ms. Coffey, arguing that both

contained inadmissible hearsay. At the pretrial motions hearing, the prosecutor indicated

that Ms. Gilbert had refused to meet with her and that the State had had difficulty locating

Ms. Gilbert to serve her with a subpoena to appear at trial. The defendant insisted that Ms.

-9-

Gilbert’s statement was hearsay, and the prosecutor replied:

I am not going to try to elicit any hearsay intentionally. I do

think that if these are recorded statements and they are

inconsistent, then potentially I may try 803(26) again, so -- I

may use it for impeachment purposes or some other purpose,

or if it falls, you know, out of bounds of hearsay for some other

purpose, something like that, so.

When the defendant specifically objected to Officer Medley’s conveying the substance of

the statement to the jury, the State agreed that it would not ask Officer Medley to do so.

The trial court ruled that the officer “just can’t say what they told him unless the door is

opened otherwise.”

While discussing other issues on the first day of trial, the prosecutor indicated

to the trial court that she had had an intern “take off the first three minutes and 30 seconds”

containing Officer Medley’s interview of Mr. Burgess from the single audio recording that

contained interviews with both Mr. Burgess and Ms. Gilbert “because it’s a very real

possibility that I’m going to have to impeach my own witness with her recorded statement.”

The prosecutor added that she intended to “potentially maybe seek to introduce it under

803(26).” The defendant noted that it was suspicious that the State had twice invoked the

exception under 803(26) as potential avenue of admission for Ms. Gilbert’s recorded

statement but said nothing further.

During Ms. Gilbert’s direct examination testimony, the State asked Ms.

Gilbert if she had told Officer Medley that the defendant said “something to the effect of,

if she comes back out here, she’s not going to leave.” Ms. Gilbert equivocated, saying first

that she did not “believe” that she had said that to Officer Medley because she did not

remember the defendant’s “saying nothing like that.” She then said that she did not “think

I put it in those words. I think he said something like don’t -- basically, he didn’t want her

back out there.” She said again that she did not recall having used that specific language

when speaking to Officer Medley.

Ms. Gilbert admitted that she told Officer Medley that she told the defendant

“you’re not going to do anything to my mama, that’s my mama.”

Ms. Gilbert denied saying that the defendant “start[ed] shooting,” insisting

that she “didn’t say shooting because I didn’t see him with no gun in his hand. I said I

heard a noise and I heard them saying ‘Tim’ like calling my daddy’s name.” She also

denied telling the officer that she heard someone tell the defendant to “put the gun down”

and said that she did not “think” she had told him the defendant “came out of the trunk

-10-

with a gun.” She admitted, however, having told him that the defendant was shooting

directly at Ms. Coffey.

At that point, the prosecutor asked to play part of Ms. Gilbert’s recorded

statement, and the defendant objected on hearsay grounds. The trial court overruled the

objection. After the State played a portion of the audio recording wherein Ms. Gilbert told

Officer Medley that the defendant said “if she comes back out here, she’s not going to

leave,” Ms. Gilbert acknowledged having made the statement. Upon hearing another

portion of the audio recording, Ms. Gilbert again acknowledged having told Officer

Medley that the defendant was shooting and explained that “the only reason I even said

that is because I had seen my mother’s car so I just assumed since what it had on it, he had

shot at her.” Upon hearing other snippets from the recording, Ms. Gilbert admitted that

she told Officer Medley that she heard others tell the defendant to put the gun down. Ms.

Gilbert also admitted telling Officer Medley that the defendant came out of the trunk with

a gun but insisted that she “didn’t see him come out of no trunk with no gun,” “[n]ot with

my own eyes.” At the conclusion of Ms. Gilbert’s direct examination, the prosecutor

passed the witness but said that she would be “asking for a jury out for an 803(26)

evaluation.”

Following the defendant’s cross-examination of Ms. Gilbert, the prosecutor

indicated that she intended to ask the court for a jury-out hearing to determine the

statement’s admissibility under Rule 803(26). The trial court expressed confusion at “the

procedure you are doing” but indicated that it wanted to continue with the proof and hold

the hearing “later.” The prosecutor agreed, and the defendant did not object. The trial then

proceeded, with the State calling two more witnesses, Officer Medley and Lieutenant

Turner, before resting its case. The defendant moved for judgment of acquittal, and the

court indicated that it wanted to conduct a Momon colloquy first. At that point, the State

asked the court for a jury-out hearing to determine whether Ms. Gilbert’s recorded

statement would be admissible as substantive evidence pursuant to Rule 803(26).

The trial court agreed to hold a jury-out hearing “relative to the testimony of

Ms. Gilbert,” and the State called Officer Medley as a witness. Officer Medley testified

that Ms. Gilbert appeared to be sober and clear headed and that she had “possibly” had the

night to sleep between the incident and the interview on December 25, 2018. He said that

nothing at the time gave him the impression that Ms. Gilbert was not being honest. He said

that Ms. Gilbert’s statement was consistent with the version of events provided by Ms.

Coffey.

During cross-examination, Officer Medley conceded that Ms. Gilbert had

“possibly” had time to discuss the incident with Ms. Coffey. He said that he recorded the

interviews with both Ms. Gilbert and Mr. Burgess with his cellular telephone because there

-11-

was no one available to give him access to the recording equipment at the police station.

The State argued that it had established by a preponderance of the evidence

that Ms. Gilbert’s statement was made under circumstances indicating trustworthiness,

noting that she had given the statement to a uniformed police officer at the police station

soon after the incident. The defendant argued that “there are enough atypical details to this

interview,” including the fact that it “took place in the interview room but [was not] filmed”

and that it took place at the same time as Mr. Burgess’s interview, to undermine its

trustworthiness. The trial court concluded, again without any analysis, “that Ms. Gilbert’s

prior statement was made under circumstances indicating trustworthiness.” The State then

moved the audio recording of the interview into evidence, noting again that an intern had

removed “the first three minutes and 30 seconds, which is Chris Burgess.” When the jury

returned, the trial court informed the jury that it had

added an exhibit, exhibit eight, that you can take back and

listen to. The Court has ruled that the statement of Chastity

Gilbert, Christmas Day, 12/25/18, now comes into evidence.

And so we are going to send that back. You can play it if you

would like and we will send a computer to [do] that with, if

there is a request.

After deliberating for approximately 25 minutes, the jury asked to listen to the audio

recording. They returned their verdict about half an hour later.

A. Waiver

Initially, we disagree with the State’s assertion that the defendant waived

plenary consideration of this issue by failing to lodge a contemporaneous objection. The

defendant asserts that he adequately challenged the admission of Ms. Gilbert’s audio

recorded statement by moving to exclude it prior to trial and by objecting when it was

initially offered. We agree. “[W]he[n] the record . . . on a motion in limine clearly presents

an evidentiary question and whe[n] the trial judge has clearly and definitively ruled” on the

motion, an objection when the challenged evidence is offered at trial is unnecessary to

preserve the issue for appellate review. State v. McGhee, 746 S.W.2d 460, 462 (Tenn.

1988); see also State v. Alder, 71 S.W.3d 299, 302 (Tenn. Crim. App. 2001). When,

however, “issues are only tentatively suggested or the record [is] only partially and

incompletely developed in connection with a motion in limine,” the failure to lodge an

objection during trial carries with it the risk that the issue has not been properly preserved.

McGhee, 746 S.W.2d at 462; see also State v. Hawkins, 519 S.W.3d 1, 48 (Tenn. 2017).

Here, the defendant raised the issue prior to trial, objected to the statement when it was

initially offered, objected to the trial court’s finding that the statement satisfied the

-12-

prerequisites for admission via Rule 803(26), and raised the issue in his motion for new

trial. Under these circumstances, we will apply plenary review to the defendant’s challenge

to the admission of Ms. Gilbert’s statement.

B. Purpose in Calling Ms. Gilbert

Although “[t]he credibility of a witness may be attacked by any party,

including the party calling the witness,” Tenn. R. Evid. 607, “[a] party may not call a

witness to testify for the primary purpose of introducing a prior inconsistent statement that

would otherwise be inadmissible,” State v. Jones, 15 S.W.3d 880, 892 (Tenn. Crim. App.

1999); Tenn. R. Evid. 607, Advisory Comm’n Comment (“Decisional law prohibits a

lawyer from calling a witness knowing the testimony will be adverse to the lawyer’s

position-solely to impeach that witness by an inconsistent statement.”). To determine

whether there has been a violation of this rule, this court considers “whether the prior

statement and the testimony were inconsistent, whether the party calling the witness was

aware the witness had disavowed the previous statement, and whether evidence existed to

show the witness had been called for the sole purpose of impeachment.” State v. Rayfield,

507 S.W.3d 682, 698-99 (Tenn. Crim. App. 2015) (citing Jones, 15 S.W.3d at 892; Mays

v. State, 495 S.W.2d 833, 836-37 (Tenn. Crim. App. 1972); State v. Harold Francis Butler,

No. E2014-00631-CCA-R3-CD, 2015 WL 2233122, at *7-8 (Tenn. Crim. App., Knoxville,

May 11, 2015); State v. Deundrick Laran Coble, No. W2001-00039-CCA-R3-CD, 2002

WL 31259501, at *3 (Tenn. Crim. App., Jackson, Aug. 30, 2002); State v. Roy L. Payne,

No. 03C01-9202-CR-00045, 1993 WL 20116, at *1-2 (Tenn. Crim. App., Knoxville, Feb.

2, 1993)).

In this case, the the State indicated as early as the February 27, 2020 motion

hearing that it anticipated seeking admission of Ms. Gilbert’s statement under Rule

803(26), noting that Ms. Gilbert had refused to meet with the prosecutor and had eluded

service. The prosecutor stated that Ms. Gilbert was “an essential witness” and that she had

“met with [Ms. Gilbert] in sessions” at the first setting of the case but did not disclose the

content of that discussion. Ms. Gilbert did not appear for the second setting of the case in

the sessions court. At the hearing on the motion for new trial, the prosecutor stated that

the case against the defendant was dismissed in the general sessions court because Ms.

Gilbert did not appear for the preliminary hearing. The prosecutor noted that the State had

had difficulty “getting in touch with Ms. Gilbert” following that initial meeting in the

sessions court, which, she said, “happens a lot in cases of domestic violence, family

violence, that type of thing.” She admitted that when she finally spoke with Ms. Gilbert

on February 28, 2020, Ms. Gilbert refused to meet with the prosecutor. On the first day of

trial, the prosecutor, while discussing the proposed amendment to Count 1, indicated that

“the proof will be, based on Ms. Gilbert’s statement to law enforcement, was that her father,

Tim Gilbert, went to his vehicle and saw Rotosha Coffey drive back by and comes out of

-13-

the trunk with a gun and fires the shot.” When the court asked, “So somebody is going to

see him with a gun?” the prosecutor replied again that Ms. Gilbert had given a statement

“saying that she saw her father come out of the trunk with a gun and he was shooting

directly at her mother.” When the trial court asked if Ms. Gilbert was going to testify at

trial in a manner that would support a finding that the defendant used a firearm, the

prosecutor replied only that “[s]he was served.” Later, while discussing the late disclosure

of Mr. Burgess’s exculpatory statement, the prosecutor again noted that “it’s a very real

possibility that I’m going to have to impeach my own witness with her recorded statement.”

The prosecutor may not have, as she insisted, known exactly “what [Ms. Gilbert] was going

to say,” but she was clearly on notice that Ms. Gilbert did not intend to testify consistently

with the statement she had provided to Officer Medley. Certainly, this is not a case where

the State was deceived by Ms. Gilbert and surprised by her inconsistent testimony. See

Rayfield, 507 S.W.3d at 699 (“Based upon the prosecutor’s statement to the court about

the State’s preparing Mr. Rayfield for his trial testimony and Mr. Rayfield’s deception

relative to the content of his trial testimony, we conclude that the [d]efendant has not shown

that the State was aware, when it called Mr. Rayfield as a trial witness, that Mr. Rayfield

had disavowed his written statement.”); Coble, 2002 WL 31259501, at *3 (“Indeed, it

appears that the prosecution was misled by Ervin into believing that at trial, Ervin would

affirm his pre-trial statement. Under the circumstances, there is nothing in the record of

this case to indicate that Ervin was called to the stand as a mere ruse to get his pre-trial

statement into evidence.”).

In our view, the prosecutor’s indication before the trial began that she

anticipated impeaching Ms. Gilbert and entering her statement to Officer Medley as

substantive evidence specifically via Rule 803(26) coupled with her evasive answers about

Ms. Gilbert’s anticipated testimony and the fact that Ms. Gilbert had failed to attend the

preliminary hearing and had refused to meet with the State to discuss her potential trial

testimony established that the prosecutor called Ms. Gilbert as a witness for the primary

purpose of introducing her otherwise inadmissible statement. The trial court should not

have allowed the State’s impeachment of Ms. Gilbert, which “was calculated to and did

serve . . . to put before the jury the out of court statements.” Mays, 495 S.W.2d at 837.

Moreover, considered in light of the proof presented at trial, we cannot say

that the error was harmless. As the prosecutor admitted even prior to trial, Ms. Gilbert’s

testimony was crucial to the State’s case because it provided the only direct evidence that

the defendant actually possessed a firearm and that he fired it at Ms. Coffey. Neither Mr.

Burgess nor Ms. Coffey saw the defendant fire a gun. Ms. Coffey’s vague and equivocal

testimony about having seen either a gun or a gun case either in the defendant’s car or on

a table in his house either on the day of the offense or the day before lacked the specificity

sufficient to support a conviction for unlawful weapon possession, reckless endangerment,

or aggravated assault as alleged in the indictment, which specifically asserted that the

-14-

defendant had fired a gun at Ms. Coffey. The presence of fired shell casings in the

defendant’s front yard was certainly circumstantial evidence that someone had fired a gun

in the yard at some time, but that evidence, even when considered alongside testimony from

Ms. Gilbert and Ms. Coffey that they heard a noise, does not establish that the defendant

fired a gun at Ms. Coffey. Similarly, although the police officers expressed a belief that

the defect on Ms. Coffey’s vehicle was caused by a bullet, Ms. Coffey testified that the

mark could have been on there prior to the offense date. In fact, Ms. Coffey testified that

she had not even seen the mark until it was pointed out to her by the officers. Ms. Coffey

did not testify that she heard or felt a bullet strike the vehicle. Indeed, no witness testified

to hearing or seeing a bullet strike Ms. Coffey’s car. No bullet was ever recovered from

the vehicle despite an extensive search. Thus, the evidence was insufficient to support the

defendant’s convictions of aggravated assault, reckless endangerment, and unlawful

weapon possession without Ms. Gilbert’s testimony.

C. Admission via Rules 613(b) and 803(26)

Additionally, even if we had concluded that the State did not call Ms. Gilbert

for the purpose of impeaching her with her pretrial statement, we would still reverse the

defendant’s conviction based upon the trial court’s erroneously admitting the recorded

statement in its entirety.

“‘Hearsay’ is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” Tenn. R. Evid. 801(c). “Hearsay is not admissible except as provided by these

rules or otherwise by law.” Id. 802. Tennessee Rules of Evidence 803 and 804 provide

exceptions to the general rule of inadmissibility of hearsay. Our supreme court has

confirmed that “[t]he standard of review for rulings on hearsay evidence has multiple

layers.” Kendrick v. State, 454 S.W.3d 450, 479 (Tenn. 2015). The “factual and credibility

findings” made by the trial court when considering whether a statement is hearsay, “are

binding on a reviewing court unless the evidence in the record preponderates against them.”

Id. (citing State v. Gilley, 297 S.W.3d 739, 759-61 (Tenn. Crim. App. 2008)). “Once the

trial court has made its factual findings, the next questions—whether the facts prove that

the statement (1) was hearsay and (2) fits under one [of] the exceptions to the hearsay

rule—are questions of law subject to de novo review.” Kendrick, 454 S.W.3d at 479 (citing

State v. Schiefelbein, 230 S.W.3d 88, 128 (Tenn. Crim. App. 2007); Keisling v. Keisling,

196 S.W.3d 703, 721 (Tenn. Ct. App. 2005)); see also Gilley, 297 S.W.3d at 760 (stating

that because “[n]o factual issue attends” the trial court’s determination whether a statement

is hearsay, “it necessarily is a question of law”). “If a statement is hearsay, but does not fit

one of the exceptions, it is inadmissible, and the court must exclude the statement. But if

a hearsay statement does fit under one of the exceptions, the trial court may not use the

hearsay rule to suppress the statement.” Kendrick, 454 S.W.3d at 479; see also Gilley, 297

-15-

S.W.3d at 760-61.

In addition to the exceptions for admission in Rules 803 and 804, Evidence

Rule 613 provides a potential avenue for the admission of an out-of-court statement. Under

Rule 613, “[e]xtrinsic evidence of a prior inconsistent statement by a witness is not

admissible unless and until the witness is afforded an opportunity to explain or deny the

same.” Tenn. R. Evid. 613(b); see State v. Martin, 964 S.W.2d 564, 567 (Tenn. 1998)

(confirming that “extrinsic evidence remains inadmissible until the witness either denies

or equivocates as to having made the prior inconsistent statement”). “Extrinsic evidence

of a prior inconsistent statement remains inadmissible when a witness unequivocally

admits to having made the prior statement” because “[t]he unequivocal admission of a prior

statement renders the extrinsic evidence both cumulative and consistent with a statement

made by the witness during trial.” Martin, 964 S.W.2d at 567. On the other hand, extrinsic

evidence of a prior inconsistent statement will be admissible when a witness denies making

the statement, equivocates about having made the statement, or testifies that he or she does

not recall making the prior inconsistent statement. Id. (citing State v. Kendricks, 947

S.W.2d 875, 881 (Tenn. Crim. App. 1996)).

Generally, because they contain hearsay, “prior inconsistent statements

offered to impeach a witness are to be considered only on the issue of credibility, and not

as substantive evidence of the truth of the matter asserted in such statements.” State v.

Reece, 637 S.W.2d 858, 861 (Tenn. 1982). Tennessee Rule of Evidence 803(26), however,

provides an exception to the hearsay rule permitting a prior inconsistent statement of a

witness that is “otherwise admissible under Rule 613(b)” to be used as substantive evidence

if the declarant testifies at trial; the statement is recorded, signed by the declarant, or given

under oath; and “made under circumstances indicating trustworthiness.” Tenn. R. Evid.

803(26). The latter finding requires the trial court to “conduct a hearing outside the

presence of the jury to determine by a preponderance of the evidence that the prior

statement was made under circumstances indicating trustworthiness.” Id. The Advisory

Commission Comments to Rule 803(26) provide that “[t]o be considered as substantive

evidence the statement must first meet the traditional conditions of admissibility which

include the procedural aspects of inconsistent statements as addressed in Rule 613.”

Here, Ms. Gilbert unequivocally admitted having given a statement to

Officer Medley and acknowledged that she knew that Officer Medley had recorded the

statement. Nevertheless, she either denied or equivocated about telling Officer Medley:

that the defendant said “something to the effect of, if she comes back out here, she’s not

going to leave”; that the defendant “start[ed] shooting”; that she heard someone tell the

defendant to “put the gun down”; and that the defendant “came out of the trunk with a

gun.” Consequently, those portions of her statement directly contradicting those statements

were admissible as impeachment evidence under the terms of Rule 613(b). Because Ms.

-16-

Gilbert admitted having said that she told Officer Medley that the defendant said “you’re

not going to do anything to my mama, that’s my mama” and that the defendant was

shooting directly at Ms. Coffey, extrinsic evidence of those statements in the form of her

recorded statement to Officer Medley was not admissible under the terms of Rule 613(b).

See Martin, 964 S.W.2d at 567.

Because Ms. Gilbert’s statement was audio recorded and because Ms. Gilbert

testified and was subject to cross-examination at trial, the four assertions within the

recorded statement to Officer Medley that satisfied the criteria for admission via Evidence

Rule 613(b) were subject to admission as substantive evidence under the terms of Rule

803(26) upon a ruling by the trial court at a jury-out hearing that the statement was “made

under circumstances indicating trustworthiness.” Although we agree that the procedure

employed in this case with regard to the 803(26) hearing was unorthodox, we cannot say

that the procedure per se violated the terms of the rule. It is true that the State had indicated

to the trial court that it had rested its case-in-chief before asking for a jury-out hearing, but

it had not formally rested its case in the presence of the jury. The court held a hearing out

of the presence of the jury, and the defendant was afforded an opportunity to cross-examine

Officer Medley about the circumstances under which Ms. Gilbert provided the statement.

His testimony indicated that Ms. Gilbert provided the statement to him at the police station

and that he was wearing his uniform at the time. Both Officer Medley, at the jury-out

hearing, and Ms. Gilbert, during direct examination at trial, stated that they knew the

statement was being audio recorded. Additionally, Officer Medley explained that he had

recorded the interviews on his cellular telephone because, due to the holiday, he had no

access to the recording equipment at the police station. Ms. Gilbert, however, was not

called as a witness at the hearing and was not asked during direct examination about the

circumstances that led her to give the statement to Officer Medley. Nevertheless, we

cannot say that, under the circumstances, the trial court erred by finding that the statement

was made under circumstances indicating trustworthiness. Accordingly, the trial court did

not err by concluding that the four inconsistent portions of Ms. Gilbert’s pretrial statement

satisfied the criteria for admission as substantive evidence under Rule 803(26).

As indicated above, because Ms. Gilbert admitted having said that she told

the defendant “you’re not going to do anything to my mama, that’s my mama” and that the

defendant was shooting directly at Ms. Coffey, extrinsic evidence of those statements was

not admissible under the terms of Rule 613(b), see Martin, 964 S.W.2d at 567, and,

accordingly, not admissible as substantive evidence under the terms of Rule 803(26).

Unfortunately, rather than redact the recording to feature only the four inconsistent

statements, the trial court admitted the recording in its entirety, and the record establishes

that the jury specifically asked to listen to the recording during deliberations. This was

error.

-17-

Again, as indicated above, Ms. Gilbert’s pretrial statement was the only

evidence that the defendant shot at Ms. Coffey or, indeed, even possessed a gun. Without

Ms. Gilbert’s pretrial statement, the proof established that the defendant and Ms. Coffey

exchanged words and got into an altercation after the defendant asked Ms. Coffey to leave.

Ms. Coffey heard what she believed to be gunshots, but she did not stop. She did not see

the defendant with a gun. There was a defect on the side of Ms. Coffey’s car that the police

opined had been caused by a bullet, but Ms. Coffey could not say that the defect had not

been on the car before the day of the offense. Moreover, she did not testify that she heard

or felt any impact on her vehicle. Ms. Gilbert admitted telling the police that the defendant

had shot at Ms. Coffey but denied actually having seen him do so. Both Ms. Coffey and

Ms. Gilbert acknowledged that they were angry with the defendant for asking Ms. Coffey

to leave the Christmas party when they gave their statements to the police. Under these

circumstances, we cannot say that the erroneous admission of the entirety of the statement

was harmless.

III. Sufficiency

The defendant challenges the sufficiency of the convicting evidence, arguing

that the State could not have established that he possessed or used a firearm “without

Chastity Gilbert’s unsworn prior recorded statement to law enforcement being admitted as

evidence.” Ms. Gilbert’s statement was admitted into evidence, however, and its inclusion

into the sufficiency of the evidence calculus is not affected by whether this evidence should

have been inadmissible. See State v. Longstreet, 619 S.W.2d 97, 100-01 (Tenn. 1981)

(holding that even inadmissible evidence goes into a calculation of the sufficiency of the

evidence).

Sufficient evidence exists to support a conviction if, after considering the

evidence—both direct and circumstantial—in the light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319 (1979);

State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). This court will neither re-weigh the

evidence nor substitute its inferences for those drawn by the trier of fact. Dorantes, 331

S.W.3d at 379. The verdict of the jury resolves any questions concerning the credibility of

the witnesses, the weight and value of the evidence, and the factual issues raised by the

evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court

must afford the State the strongest legitimate view of the evidence contained in the record

as well as all reasonable and legitimate inferences which may be drawn from the evidence.

Id.

As charged in this case, “[a] person commits aggravated assault who . . .

[i]ntentionally or knowingly commits an assault as defined in § 39-13-101, and the assault

-18-

. . . [i]nvolved the use or display of a deadly weapon.” T.C.A. § 39-13-102(a)(1)(A)(iii).

“A person commits an offense who recklessly engages in conduct that places or may place

another person in imminent danger of death or serious bodily injury.” Id. § 39-13-103(a).

“A person commits an offense who unlawfully possesses a firearm, as defined in § 39-11-

106, and . . . [h]as been convicted of a felony drug offense.” Id. § 39-17-1307(b)(1)(B).

“It is an offense for a person to intentionally prevent or obstruct anyone known to the

person to be a law enforcement officer . . . from effecting a stop, frisk, halt, arrest or search

of . . . the defendant, by using force against the law enforcement officer or another.” Id. §

39-16-602(a).

Examined in the light most favorable to the State, the evidence adduced at

trial established that the defendant and Ms. Coffey quarreled at a Christmas Eve gathering

at the defendant’s house and that the quarrel culminated in the defendant’s asking Ms.

Coffey to leave. Ms. Coffey left but drove back by the defendant’s house, at which point

the defendant fired a gun at her while others were present in the front yard of the house.

Ms. Coffey testified that she drove away quickly after hearing what she believed to be

gunshots because she was afraid. Officer Medley testified that the defendant forcibly

resisted being handcuffed when the officer went to his residence to arrest him, and the

defendant admitted that he initially refused to allow the officers to handcuff him, claiming

that he did not know he was under arrest. A certified copy of the judgment established the

defendant’s prior conviction of a felony drug offense. This evidence was sufficient to

support the defendant’s convictions.

IV. Jury Room Claims

The defendant next contends that having the grand and petit juries deliberate

“in an inherently prejudicial Confederate Jury Room violated” his constitutional right “to

a fair trial, his right to an impartial jury, his right to due process, and right to equal

protection of the law,” arguing that the jury room utilized in Giles County violates the 14th

Amendment’s “protection against state-sponsored racial discrimination” and the 6th

Amendment’s “right to a jury trial”; violates the state and federal constitutional right to

trial by “an impartial jury”; violates “evidentiary standards”; “constitutes extraneous

prejudicial information and improper outside influence”; and “violates the trial court’s duty

of judicial impartiality.” The State asserts only that the defendant has waived plenary

consideration of this issue by failing to challenge the conditions of the jury room prior to

trial. In its amicus brief, the Tennessee Association of Criminal Defense Lawyers

(“TACDL”), noting that “[m]ultiple courts have recognized the racially hostile and

disruptive nature of the Confederate flag,” argues that “a jury’s exposure to Confederate

Icons denies the defendant a fair trial free of extraneous prejudicial information and

improper outside influence.”

-19-

We begin with a description of the jury room and its contents as established

by photographs exhibited to the hearing on the motion for new trial. The first photograph

depicts the door that leads into the jury room. The glass panel in the door bears the insignia

of the U.D.C.: the first national flag used by the Confederate States of America, commonly

referred to as the “Stars and Bars,”1 which consists of two large red bars at the top and the

bottom separated by a broad white bar with a blue canton at the top hoist corner containing

a circle of seven white stars representing each of the original Confederate states, encircled

by a wreath of gold with a ribbon at the bottom bearing the number 61 on the left and the

number 65 on the right.2 The door is inscribed “U.D.C. Room” in gold paint.

The second, third, and fifth photographs exhibited to the hearing show a

large, framed flag hanging on the wall of the U.D.C. Room directly across from the entry

door. The Confederacy changed its official flag three times before the end of the Civil

War. Because the “Stars and Bars” was similar to the design of the American flag, that

flag caused confusion on the battlefield, prompting the Confederate army to employ battle

flags, the most recognizable of which is the Southern Cross design—a diagonal or x-shaped

blue cross, trimmed in white, on a field of red adorned with 13 stars—that has become

most closely associated with the Confederacy in the modern era.3 The Confederacy later

integrated the Southern Cross battle flag into its official national flag as a canton at the top

hoist corner on a field of white. That flag, referred to as the “Stainless Banner” was

replaced by a new design shortly before the fall of the Confederacy. This new design,

referred to as the “Blood Stained Banner,” also features the Southern Cross battle flag as a

canton at the top hoist corner on a field of white but adds a broad red bar on the fly edge

of the field of white. The flag on the wall of the U.D.C. Room is of the “Blood Stained

Banner” design. The size of the flag and its location within the U.D.C. Room make it

immediately visible to any person upon entering the room. A plaque affixed to the flag’s

frame reads, “Confederate Flag Property of Giles County Chapter #257 UDC.”

The third, fourth, sixth, seventh, and eighth photographs show framed

1

See Encyclopedia Britannica, Flag of the Confederate States of America,

https://www.britannica.com/topic/flag-of-the-Confederate-States-of-America (last visited October 21,

2021), for full description of the Stars and Bars.

2

“The badge adopted by the U.D.C. is of gold and consists of the flag of the Confederacy, known as

the ‘Stars and Bars’ surrounded by a wreath of laurel with the letters U. D. C. under its folds, and on the

loop of the ribbon beneath it the years 61-65, and to honor its significance, it is forbidden to make it into

hat pins or other ornaments.” Hyde, Anne Bachman, An Historical Account of the United Daughters of the

Confederacy: Origin, Objects and Purposes 5 (issued by Memorial Chapter No. 48 Little Rock, Ark. 1959).

3

See Encyclopedia Britannica, Flag of the Confederate States of America,

https://www.britannica.com/topic/flag-of-the-Confederate-States-of-America (last visited October 21,

2021), for a full description and history of the flags employed by the Confederacy.

-20-

portraits. One, a framed portrait of Jefferson Davis, who served as the president of the

Confederacy, hangs on the wall adjacent to the flag wall and is also visible to any person

upon entering the room. A plaque affixed to the portrait reads, “President Jefferson Davis

Owned by Giles County Chapter #257, UDC.” Another framed portrait bears a plaque that

reads “General John C. Brown Owned by Giles County Chapter #257, UDC.”

Those same photographs as well as the ninth photograph show a framed letter

on the wall adjacent to the portrait of General Brown. The letter, dated March 25, 2005, is

addressed to Ms. Cathy Gordon Wood, then president of the Giles County Chapter of the

U.D.C. from Ms. Winifred D. Cope, President General of the U.D.C. from 2004-2006. The

letter reads:

Dear Ms. Wood:

Thank you for your letter informing me of the goals of your

chapter. How exciting that you wish to be more visible in Giles

County! With the replacing of the panel on the door, you will

be continuing a tradition of the UDC, namely, memorial.

It is my understanding from your letter that the room in the

Giles County Courthouse has been a UDC room since 1930’s.

The accident concerning the panel happened between the time

the Red Cross used the room during World War II, and present

day. As there is no indication of the responsibility of the

damage, and your chapter is willing to accept the cost, I assume

all expenses will be borne by the chapter.

I therefore give Giles County Chapter #257, Pulaski,

Tennessee full authority to replace the clear glass door panel

with a frosted glass panel, with the following inscription -

“UDC Room” with the UDC emblem located above the

lettering.

As members of the United Daughters of the Confederacy®, we

must continue to honor our Confederate Veterans, and share

the history of the War Between the States. I thank you and

your chapter for your support to the General Organization as

we remember the objects of the UDC-Historical, Educational,

Benevolent, Memorial, and Patriotic.

At the hearing on the motion for new trial, Giles County Circuit Court Clerk

-21-

Natalie Oakley testified that petit juries in Giles County deliberate and the grand jury meets

in “the U.D.C. Room.” She said that U.D.C. stands for The United Daughters of the

Confederacy, that “U.D.C Room” is painted on the door, and that the room contains “a

[C]onfederate flag hanging on the wall.” Ms. Oakley said that there was another “room

that is right outside this door to the courtroom to the left and it’s typically used as a break

room but there is a table in there where a jury could deliberate.” She said that she “knew

the name of the room and what was in there” but that she had not “consciously studied the

room.” During cross-examination, Ms. Oakley said that, when not being used by a jury,

the U.D.C. Room was open to the public.

Giles County Grand Jury Foreman Sam T. Collins testified that he had been

grand jury foreman for 14 years and that, during that time, he had had no indication that

the Confederate memorabilia in the U.D.C. Room had affected the judgment of the grand

jurors. He said that grand jurors had never discussed the items and that the race of the

defendant had never become an overt factor in the decision-making process. He said that

the room was in the same condition it was when he became foreman.

The defendant argued that having the jury deliberate in a room festooned

with Confederate memorabilia and maintained by the U.D.C. implied that the court

“subscribes to the confederate principles” and that to many, “the confederacy and racism

go hand in hand.” He asserted that “the symbols on that wall do nothing but embolden”

jurors to act on racial animus. He claimed that the constitution required that juries conduct

deliberations in “an impartial environment, free from distractions.” He also pointed out

that strict rules attend the placing of evidence in the jury room.

The State claimed that the defendant waived the issue by failing to raise it

before the jury was sworn. Additionally, the State argued that the fact that the defendant

had been acquitted in a previous, unrelated case and granted probation in others suggested

that the defendant had not been prejudiced by the material in the jury room. The trial court

agreed and concluded that the defendant had failed to prove his claim. The judge

specifically noted that juries had deliberated in the U.D.C. Room in Giles County for the

43 years that the judge had been active in the legal community there.

A. Waiver

The State asserts that the defendant waived plenary review of the use of the

U.D.C. Room by failing to object prior to trial. We disagree. As will be discussed more

fully below, the jury should not be exposed to extraneous information, and the burden does

not rest with the defendant to ensure that this is so. Moreover, the location of jury

deliberations is not one of the issues that must be raised prior to trial. See Tenn. R. Crim.

P. 12(b)(2).

-22-

B. Extraneous Prejudicial Information

“Both the United States and Tennessee Constitutions guarantee criminal

defendants the right to a trial by an ‘impartial jury.’” State v. Hugueley, 185 S.W.3d 356,

377 (Tenn. 2006) (citing U.S. Const. amend. VI; Tenn. Const. art. I, § 9). “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.” State v. Smith,

418 S.W.3d 38, 44-45 (Tenn. 2013) (citing Walsh v. State, 166 S.W.3d 641, 649 (Tenn.

2005)). Our supreme court has defined an “unbiased and impartial jury” as “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.” Smith, 418 S.W. 3d

at 45 (citing Durham v. State, 188 S.W.2d 555, 558 (Tenn. 1945); State v. Adams, 405

S.W.3d 641, 650-51 (Tenn. 2013)). “Jurors must render their verdict based only upon the

evidence introduced at trial, weighing the evidence in light of their own experience and

knowledge.” State v. Adams, 405 S.W.3d 641, 650 (Tenn. 2013) (citing Caldararo ex rel.

Caldararo v. Vanderbilt Univ., 794 S.W.2d 738, 743 (Tenn. Ct. App. 1990)).

The validity of a verdict returned by a jury that “has been subjected to either

extraneous prejudicial information or an improper outside influence . . . is questionable.”

Adams, 405 S.W.3d at 650 (citing State v. Blackwell, 664 S.W.2d 686, 688 (Tenn. 1984)).

“Extraneous prejudicial information has been broadly defined as information coming from

without.” Adams, 405 S.W.3d at 650 (citation and internal quotation marks omitted). “A

party challenging the validity of a verdict must produce admissible evidence to make an

initial showing that the jury was exposed to extraneous prejudicial information or subjected

to an improper outside influence.” Adams, 405 S.W.3d at 651. “Extraneous prejudicial

information” encompasses “the form of either fact or opinion that was not admitted into

evidence but nevertheless bears on a fact at issue in the case,” and improper outside

influence is considered “any unauthorized ‘private communication, contact, or tampering

directly or indirectly, with a juror during a trial about the matter pending before the jury.’”

Id. at 650-51 (quoting Remmer v. United States, 347 U.S. 227, 229 (1954)). Upon a

showing “that the jury was exposed to extraneous prejudicial information or an improper

outside influence, a rebuttable presumption of prejudice arises and the burden shifts to the

State to introduce admissible evidence to explain the conduct or demonstrate that it was

harmless.” Adams, 405 S.W.3d at 651 (citing Walsh, 166 S.W.3d at 647).

The challenged information in this case consists of a large, framed

Confederate flag, two portraits of Confederate leaders, and a framed letter from the national

leader of the U.D.C. Because the flag was the most visible and most instantly recognizable

of the items on the wall—one would likely be hard-pressed to find a citizen who would

-23-

recognize Jefferson Davis, let alone John C. Brown, on sight—we will concern ourselves

primarily with that item. “The use of an emblem or flag to symbolize some system, idea,

institution, or personality, is a short cut from mind to mind. Causes and nations, political

parties, lodges and ecclesiastical groups seek to knit the loyalty of their followings to a flag

or banner, a color or design.” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 632

(1943). “Flags themselves have the capacity to communicate messages pertaining to, say,

a government’s identity, values, or military strength.” Shurtleff v. City of Boston, 986 F.3d

78, 88 (1st Cir. 2021) (citations omitted). The flag displayed in the jury room is no

different. Its original purpose was to “knit the loyalty” of those in the Confederate states

“to a flag” that conveyed the political ideals of the Confederacy. See also James Forman,

Jr., Driving Dixie Down: Removing the Confederate Flag from S. State Capitols, 101 Yale

L.J. 505, 513-15 (1991) (“The flag was initially designed as a rallying symbol for

Confederate troops heading into battle.”).

To determine the political ideals of the Confederacy that could be conveyed

by the flag in this case, we look to documents created at the time its founding. At the time

they adopted the various Articles of Secession, each of the Confederate states publicly

identified the reasons behind the decision to secede from the Union, and the documents

published by the Confederate states identified the right to hold black people in chattel

slavery as central to the Southern way of life and, thus, paramount among those

justifications. These documents not only defended slavery, but endorsed it fully using

dehumanizing and racist language. See Evans & Cogswell, Printers to the Convention,

Declaration of the Immediate Causes which Induce and Justify the Secession of South

Carolina from the Federal Union, p. 1, 8 (1860)4; E. Barksdale, State Printer, Journal of

the State Convention and Ordinances and Resolutions adopted in January 1861, p. 86

(1861) (Mississippi)5; Boughton, Nibbet & Barnes, State Printers, Journal of the Public

and Secret Proceedings of the Convention of the People of Georgia, p. 104 (1861)6; Dyke

& Carlisle, Journal of the Proceedings of the Convention of the People of Florida, p. 18

(1861)7; Declaration of the Causes which impel the State of Texas to recede from the

Federal Union—also the Ordinance of Secession, p. 3 (1861)8; Wyatt M. Elliott, Printer,

Journal of the Acts and Proceedings of a General Convention of the State of Virginia, p.

93 (1861)9; Wood, Hanleiter, Rice & Co., The History and Debates of the Convention of

4

A digitized version of original source document may be viewed at

https://digital.scetv.org/teachingAmerhistory/pdfs/DecImmCauses.pdf.

5

Digitized version at https://archive.org/details/journalofstateco00miss/page/86/mode/2up.

6

Digitized version at https://archive.org/details/journalofpublics00geor/page/104/mode/2up.

7

Digitized copy at https://archive.org/details/journalofproceed00flor/page/n3/mode/2up.

8

Digitized copy at https://archive.org/details/declarationofcau00texa/page/3/mode/2up?q. Texas

also published her declarations in various broadsides, a digitized example of which is available via the

Library of Congress at https://www.loc.gov/resource/rbpe.34604300/?sp=1&st=text.

9

Digitized copy at https://archive.org/details/journalofactspro00virg/page/n97/mode/2up?q.

-24-

the People of Alabama, p. 78 (1861).10 The Confederate Constitution provided that “[i]n

all [new Confederate] territory the institution of negro slavery, as it now exists in the

Confederate States, shall be recognized and protected by Congress and by the Territorial

government.” Const. of the Confederate States of America of 1861, art. IV, § 3, cl. 3. The

Confederate Constitution further enshrined the “right of property in negro slaves” by

prohibiting the passage of any legislation that might impair that right, see id., art. I, § 9, cl.

411; by providing its citizens with “the right of transit and sojourn . . . with their slaves and

other property” without threat to “the right of property in said slaves,” see id. art. IV, § 2,

cl. 1; and by requiring that any “slave . . . escaping or lawfully carried into another . . . be

delivered up on claim of the party to whom such slave belongs,” see id. art. IV, § 2, cl. 3.

These documents establish that slavery and the subjugation of black people are inextricably

intertwined with the Confederacy and the symbols thereof. Such ideals, however, are

antithetical to the American system of jurisprudence and cannot be tolerated.

“[D]iscrimination on the basis of race, ‘odious in all aspects, is especially pernicious in the

administration of justice.’” Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 868 (2017)

(quoting Rose v. Mitchell, 443 U.S. 545, 555 (1979)).

As the Supreme Court observed, however, “[a] person gets from a symbol

the meaning he puts into it, and what is one man’s comfort and inspiration is another’s jest

and scorn.” Barnette, 319 U.S. at 632-33; Pleasant Grove City v. Summum, 555 U.S. 460,

474 (2009) (“Even when a monument features the written word, the monument may be

intended to be interpreted, and may in fact be interpreted by different observers, in a variety

of ways.”). This case presents a perfect example. As a symbol of the Confederacy, the

Confederate flag represents, at least in part, the attempt to perpetuate the subjugation of

black people through chattel slavery. The defendant and TACDL argue that the

Confederate flag has become a symbol of racism and white supremacy, particularly given

its adoption by groups such as the Ku Klux Klan. The manner of its keeping, however,

shows that the U.D.C. views the flag as an important historical artifact worthy of

preservation and honor.12 The State makes no argument on this point. Whatever the

message, the fact remains that flags have been used “throughout history to communicate

messages and ideas,” Shurtleff, 986 F.3d at 88 (citing Barnette, 319 U.S. at 632; Griffin v.

Sec’y of Veterans Affs., 288 F.3d 1309, 1324 (Fed. Cir. 2002)), and the flag on the wall of

the U.D.C. room is no different.

10

Digitized copy at https://archive.org/details/historydebatesof00smit/page/78/mode/2up.

11

Digitized copy at https://archive.org/details/constitutiono00conf/page/16/mode/2up?q and at

https://archive.org/details/permanentconstit00conf/page/n5/mode/2up.

12

Notably, the U.D.C. was, at its inception, “a society” open only to “respectable white women who

aided the South during the war or were related to men who honorably served their country, or materially

aided the South during those stirring times.” Mo. Div. United Daughters of the Confederacy, Reminiscences

of the Women of Missouri During the Sixties 7.

-25-

That the flag appears in the county courthouse only deepens the imbroglio.

The record contains no evidence to explain how the U.D.C., a private organization,13 came

to possess a dedicated room in the Giles County Courthouse in, as the letter claims, the

1930s. The letter establishes that the U.D.C. emblem and inscription were added to the

glass panel of the door in 2005 at the expense of the Giles County Chapter of the U.D.C.,

but the record does not contain any evidence that explains how the group obtained

permission to make such changes to a government building. “The right to use government

property for one’s private expression depends upon whether the property has by law or

tradition been given the status of a public forum, or rather has been reserved for specific

official uses.” Capitol Square Rev. & Advisory Bd. v. Pinette, 515 U.S. 753, 761 (1995)

(citing Cornelius v. NAACP Legal Def,e & Ed. Fund, Inc., 473 U.S. 788, 802-03 (1985)).

When “a governmental entity manipulates its administration of a public forum close to the

seat of government (or within a government building) in such a manner that only certain .

. . groups take advantage of it,” it “creat[es] an impression of endorsement.” Pinette, 515

U.S. at 766.

Although the U.D.C. is a private organization and although the flag belongs

to that organization, the location of the flag and the other items within the courthouse in a

room used on a regular basis, which location has not been historically viewed as a public

forum, clothes all of the items, including the flag in particular, with the imprimatur of state

approval. Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 576 U.S. 200, 217

(2015) (“The fact that private parties take part in the design and propagation of a message

does not extinguish the governmental nature of the message or transform the government’s

role into that of a mere forum-provider.”). “Public property which is not by tradition or

designation a forum for public communication” may be reserved by the state for “its

intended purposes, communicative or otherwise.” Perry Educ. Ass’n v. Perry Loc.

Educators’ Ass’n, 460 U.S. 37, 46 (1983). By contrast, “[a]n open forum . . . does not

confer any imprimatur of state approval.” Widmar v. Vincent, 454 U.S. 263, 274 (1981).

When, however, the government accepts “a privately donated monument” and places it on

government property not typically used as a forum for public communication, the

government “engages in expressive conduct.” Summum, 555 U.S. at 476. Indeed, “as a

general matter, forum analysis simply does not apply to the installation of permanent

monuments,” which this display certainly appears to be, “on public property.” Summum,

555 U.S. at 480.

To be sure, “it frequently is not possible to identify a single ‘message’ that is

13

See United Daughters of the Confederacy, https://hqudc.org/history-of-the-united-daughters-of-

the-confederacy/ (last visited September 22, 2021) (“The UDC was incorporated under the laws of the

District of Columbia on July 18, 1919” and currently exists as “a nonprofit organization and it meets the

requirements of the Internal Revenue Service Code 501(c)(3) as a tax-exempt organization.”).

-26-

conveyed by an object or structure, and consequently, the thoughts or sentiments expressed

by a government entity that accepts and displays such an object may be quite different from

those of either its creator or its donor.” Summum, 555 U.S. at 476; see also Texas v.

Johnson, 491 U.S. 397, 417 (1989) (“We never before have held that the Government may

ensure that a symbol be used to express only one view of that symbol or its referents.”).

Nevertheless, when a government creates or permits the creation of a permanent display

by a private organization, it has engaged in government speech. See Summum, 555 U.S. at

476. “An observer need not be ‘obtuse’ to presume that an unattended display on

government land in a place of prominence in . . . a government building either belongs to

the government, represents government speech, or enjoys its location because of

government endorsement of its message.” Pinette, 515 U.S. at 785-86 (Souter, J.,

concurring) (citation omitted). Accordingly, the communication at issue in this case is best

understood as government speech, giving it great weight and influence. Discussing the

“vital” role played by a court officer, our supreme court has observed that “[c]ourt officers

act as representatives of the court, and they must recognize the official character of their

position will cause their comments to carry great weight in the eyes of the jury.” Walsh,

166 S.W.3d at 650. Any communication perceived to originate from the court in its official

capacity will “carry great weight in the eyes of the jury.”

Even though the communication was a form of government speech and

regardless of the message the Giles County government meant to convey, in the context of

a criminal trial, it constitutes extraneous information. “A government entity has the right

to ‘speak for itself,’ “is entitled to say what it wishes,” “and to select the views that it wants

to express.” Summum, 555 U.S. 467-68 (quoting Bd. of Regents of Univ. of Wis. Sys. v.

Southworth, 529 U.S. 217, 229 (2000); Rosenberger v. Rector and Visitors of Univ. of Va.,

515 U.S. 819, 833 (1995), and citing Rust v. Sullivan, 500 U.S. 173, 194 (1991); Nat’l

Endowment for Arts v. Finley, 524 U.S. 569, 598 (1998) (Scalia, J., concurring in

judgment)). Importantly, however, in the context of court proceedings both judges and

jurors “must be—and must be perceived to be—disinterested and impartial.” Smith, 418

S.W.3d at 45 (citing State v. Hester, 324 S.W.3d 1, 51 (Tenn. 2010); Gribble v. Wilson, 49

S.W. 736, 736 (Tenn. 1899)) (emphasis added). The specter of racial prejudice that might

be ascribed to the flag in the U.D.C. room is particularly troublesome given that “the jury

is to be a criminal defendant’s fundamental protection of life and liberty against race or

color prejudice.” Pena-Rodriguez, 137 S. Ct. at 868 (quoting McCleskey v. Kemp, 481

U.S. 279, 310 (1987)) (citation and internal quotation marks omitted). As the Supreme

Court has observed, “[p]ermitting racial prejudice in the jury system damages ‘both the

fact and the perception’ of the jury’s role as ‘a vital check against the wrongful exercise of

power by the State.’” Id. (citations omitted). Thus, although the government may choose

to convey any message that it wants to the general public, it may not convey any message

at all to the jurors in a criminal trial. Because Giles County may not convey any message

to the jury, we conclude that permitting the jury to deliberate in a room filled with

-27-

Confederate memorabilia exposed the jury to extraneous information or improper outside

influence.14 “This extraneous information raised a presumption of prejudice and shifted

the burden to the State to show the information was harmless in order to sustain the

verdict.” Walsh, 166 S.W.3d at 647.

Having concluded that the jury was exposed to extraneous information or

improper outside influence, we must determine whether the State has rebutted the

presumption of prejudice flowing from that exposure. To do so, we consider:

(1) the nature and content of the information or influence,

including whether the content was cumulative of other evidence

adduced at trial; (2) the number of jurors exposed to the

information or influence; (3) the manner and timing of the

exposure to the juror(s); and (4) the weight of the evidence

adduced at trial.

Adams, 405 S.W.3d at 654. A reviewing court must “consider all of the factors in light of

the ultimate inquiry—whether there exists a reasonable possibility that the extraneous

prejudicial information or improper outside influence altered the verdict.” Id. (citing

Walsh, 166 S.W.3d at 649).

The State presented no proof to rebut the defendant’s assertion at the hearing

on the motion for new trial. Instead, the State argued, and the trial court agreed, that the

fact that another jury in an unrelated case had deliberated in the U.D.C. Room and acquitted

the defendant somehow established that the items in the U.D.C. Room held no sway over

the jury. That the defendant was acquitted by a different jury on unrelated charges has no

bearing at all on the question whether the jury in this case was exposed to extraneous

prejudicial information or improper outside influence. We are also unpersuaded that Mr.

Collins’ testimony that no grand juror had ever exhibited open racial animus prompted by

viewing the Confederate flag in the U.D.C. Room rebutted the presumption of prejudice or

14

Display of the American flag and the Tennessee flag in the courtroom do not constitute extraneous

communications because lawyers and judges take an oath to uphold the state and federal constitutions and

the laws of both the United States and the State of Tennessee. Jurors compose the very backbone of the

American system of jurisprudence, Walsh, 166 S.W.3d at 650 (stating that ‘[j]ury service is the highest

obligation of citizenship [and] should be an interesting and rewarding experience to be looked back on with

interest and pleasant recollection by those who are privileged to be selected) (citations and internal

quotation marks omitted), and are sworn to apply the law. The presence of these flags serve as a constant

reminder of these weighty duties. See Johnson, 491 U.S. at 405 (stating that “[t]he very purpose of a

national flag is to serve as a symbol of our country); see also United States v. Eichman, 496 U.S. 310, 321

(1990) (stating that the American flag “uniquely symbolizes the ideas of liberty, equality, and tolerance—

ideas that Americans have passionately defended and debated throughout our history. The flag embodies

the spirit of our national commitment to those ideals”).

-28-

somehow indicated that no juror had ever noticed the items. As the United States Supreme

Court has observed,

The stigma that attends racial bias may make it difficult for a

juror to report inappropriate statements during the course of

juror deliberations. It is one thing to accuse a fellow juror of

having a personal experience that improperly influences her

consideration of the case . . . . It is quite another to call her a

bigot.

Pena-Rodriguez, 137 S. Ct. at 868-69. Nevertheless, we will assess whether the State has

rebutted the presumption of prejudice using the factors from Adams.

“As to the first factor, the nature and content of the information or influence

is best determined by an inquiry into the identities of the parties involved, the substance of

the communication, and how the exchange of information occurred.” Adams, 405 S.W.3d

at 654. This case is unique in that the defendant has challenged a feature of the Giles

County Courthouse itself as constituting extraneous prejudicial information. We have

already detailed the Confederate memorabilia displayed in the U.D.C. Room. The

photographs exhibited to the hearing clearly establish that the large, framed Confederate

flag hung on the wall directly across the room from the door and was, in consequence,

within the direct sight line of any person entering the room. We have also concluded that

any message communicated by the flag qualifies as government speech, giving it great

weight in the eyes of the jury. The jury was exposed to the information by the court itself

when it chose to utilize the U.D.C. Room for juror deliberations.

As for “the number of jurors exposed to the information or influence,” the

State asserts that the defendant presented no evidence that any juror actually saw the flag

or other items. This argument, however, strains the bounds of credulity. The photographs

exhibited to the new trial hearing clearly show that the flag in particular is visible to all

who enter the room. Any person who chose to walk into the room or, while in the room,

glance at the window, could not help but see the flag. As to “the manner and timing of the

exposure to the jurors,” the record establishes that the jury retired to the jury room during

every recess, for every meal, and for its deliberations. Essentially, the entire experience of

the jurors was permeated by the presence of the extraneous communication.

We are unpersuaded by the State’s argument that the record is inadequate or

that the defendant failed to establish his claim of extraneous prejudicial information by

failing to call any of the jurors to testify about whether and how they were affected by the

items. “The predominant view among other jurisdictions is that juror testimony regarding

the subjective effect of extraneous information or outside influence on the juror’s internal

-29-

thoughts or deliberative processes is not permitted.” Walsh, 166 S.W.3d at 648 (citations

omitted). “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; see also Tenn. R. Evid. 606(b). Moreover, the defendant did

not bear the burden of establishing that the jury was affected by the extraneous information.

Instead, once the defendant established the fact of the extraneous information, the burden

lay with the State to prove that the jury was not affected by the information.

As indicated above, the evidence of the defendant’s guilt was legally

sufficient but far from overwhelming. In consequence, the weight of the evidence adduced

at trial does not support a conclusion that the State rebutted the presumption of prejudice

created by the jury’s exposure to extraneous communication in this case. Because the

defendant established that the jury was exposed to extraneous information or improper

outside influence and because the State failed to sufficiently rebut the presumption of

prejudice, the defendant is entitled to a new trial.

Because we have concluded that the defendant is entitled to a new trial based

upon the jury’s exposure to extraneous prejudicial information, we need not consider his

claims that principles of due process or equal protection entitle him to a new trial. “It is a

fundamental rule of judicial restraint” that “a reviewing court will not reach constitutional

questions in advance of the necessity of deciding them.” Three Affiliated Tribes of Fort

Berthold Rsrv. v. Wold Eng’g, P.C., 467 U.S. 138, 157 (1984); see also Burton v. United

States, 196 U.S. 283, 295 (1905) (“It is not the habit of the court to decide questions of a

constitutional nature unless absolutely necessary to a decision of the case.”).15

C. Grand Jury

The defendant asserts that permitting the grand jury to deliberate in the

U.D.C. Room “infected the framing of the indictment” with “racial discrimination.”

Because the grand jury has investigative powers and because its deliberations are not

circumscribed by the rules of evidence, see Tenn. R. Crim. P. 6, we cannot fathom that any

information the grand jury considers would be deemed “extraneous.”

V. Cumulative Error

Because we have determined that the defendant is entitled to a new trial based

15

The question whether the U.D.C. Room should remain in the Giles County Courthouse and in its

current condition is not before this court. It is sufficient that we have concluded that permitting the jury to

deliberate in the U.D.C. Room resulted in the jury’s being exposed to extraneous information and that the

State failed to rebut the presumption of prejudice flowing therefrom.

-30-

upon the erroneous admission of Ms. Gilbert’s pretrial statement and the jury’s exposure

to extraneous information, we need not address the defendant’s claim that the cumulative

effect of the errors deprived him of the right to a fair trial.

VI. Conclusion

The trial court erred by permitting the State to call Ms. Gilbert as a witness

for the primary purpose of impeaching her with her otherwise inadmissible statement to

Officer Medley and by admitting Ms. Gilbert’s recorded statement in its entirety as

substantive evidence under Rule 803(26). The defendant is entitled to a new trial because

the erroneous admission of the statement cannot be classified as harmless. The defendant

established that the jury was exposed to extraneous information by conducting its

deliberations in the U.D.C. Room. Because the State failed to sufficiently rebut the

presumption that the defendant was prejudiced by the jury’s exposure to the Confederate

memorabilia in the U.D.C. Room, the defendant is entitled to a new trial. Accordingly, we

reverse the judgments of the trial court and remand the case for a new trial.

_________________________________

JAMES CURWOOD WITT, JR., JUDGE

-31-