Friday, September 27, 2013

The Expert, The Juror and Facebook

After a jury convicted William Darelle Smith of first-degree murder in violation of Tennessee Code § 39-13-102, he appealed.  State v. Smith, 2013 WL 4804845 (Tennessee Supreme Court 2013). On appeal, Smith argued that the trial judge should have held a hearing into “Facebook messages [a juror exchanged] with one of the State's witnesses during the trial.”  State v. Smith, supra.

As to how Smith came to be charged, the opinion notes that on June 4, 2007,

Zurisaday Villanueva's body was discovered on the side of the road near the Ashland City exit on Briley Parkway in Nashville. She had been shot twice. Investigators found two .9 millimeter shell casings near [her] body, and the area around the body reflected that there had been a struggle. The investigation led the authorities to . . . Smith, with whom Villanueva had been living.

State v. Smith, supra.

Smith, as noted above, went to trial on the charge.  State v. Smith, supra. On March 8, 2010, before jury selection began, the trial judge told the prospective jurors that

[o]ver the country. . .  there's been some difficulty and it's going to force a change in the law with regard to jurors taking their cell phone and texting and trying to find out about a trial or things like that. That would be highly improper on a juror's part to do anything like that. . . . [Y]ou're required to make your decision solely upon the law and the evidence as you hear it in the courtroom.

State v. Smith, supra.

The opinion also explains that during the process of selecting the jurors for the trial, the

both the trial court and the attorneys questioned the prospective jurors about whether they knew [Smith], the prosecutors, the defense attorneys, or several of the investigating officers. Three of the prospective jurors who were eventually seated on the jury were employed at the Vanderbilt University Medical Center

Although the attorneys were aware that Dr. Adele Lewis, a medical examiner who had trained at Vanderbilt, would be testifying for the State, they asked none of the jurors, not even the three jurors affiliated with Vanderbilt, whether they knew Lewis.

State v. Smith, supra. The opinion notes that the three jurors “included a physician, a registered nurse, and Glenn Scott Mitchell, a grants manager.”  State v. Smith, supra. 

It also explains that, after the jury was chosen, the trial judge instructed them that

`[d]uring the course of the trial, you should not talk with any witnesses, defendants, or attorneys involved in this case. Please do not talk with them about any subject whatsoever. You may see them in the hallway, on an elevator, or at some other location. If you do, perhaps the best standing rule is not to say anything.’

State v. Smith, supra.

That brings us to the issue involved in this appeal.  The opinion explains that during the trial,

 Smith's cousin testified that [he] told her Villanueva pulled a pistol on him during an argument and the pistol `went off’ during the struggle. She also testified that Smith told her the pistol fired a second time when he was trying to move Villanueva's body. Smith's girlfriend testified [he] told her he had killed Villanueva but . . . was not sure what had happened. 

In addition to this testimony, the State introduced evidence that the authorities had found Villanueva's blood in an automobile driven by Smith and owned by Smith's father.

Dr. Lewis, the assistant medical examiner who performed Villanueva's autopsy, testified that Villanueva had been shot twice, once in the chest and once in the back of the head. While Lewis could not ascertain which shot had been fired first, she stated that. Villanueva could have survived the chest wound with proper medical attention but that she would not have survived the head wound. 

She also testified that the shots had been fired from an `indeterminate range’ and that she found no evidence that the muzzle of the pistol had been held against Villanueva's skin. Lewis concluded that Villanueva's death was a homicide.

State v. Smith, supra. 

The prosecutor “called one final witness following Lewis and then rested.”  State v. Smith, supra.  The defense attorney moved for a judgment of acquittal and rested when the judge denied the motion.  State v. Smith, supra.  Both made closing arguments and the judge adjourned for the day. State v. Smith, supra.  (For an overview of a criminal jury trial, check out this Wikipedia entry.)

When the trial resumed on March 10, the judge instructed the jurors on the law and then instructed them to begin deliberating.  State v. Smith, supra.  About an hour later, the trial judge “received an email from Lewis regarding communications Juror Mitchell had initiated with her on Facebook following her testimony on March 9, 2010.”  The subject of the email was “`Facebook,’” and it said:  

Judge Norman,

I can't send you actual copies of the emails since Facebook is blocked from my computer here at work, but here is a transcript:

Scott Mitchell: `A-dele!! I thought you did a great job today on the witness stand . . . I was in the jury . . . not sure if you recognized me or not!! You really explained things so great!!’

Adele Maurer Lewis: `I was thinking that was you. There is a risk of a mistrial if that gets out.’

Scott Mitchell: `I know . . . I didn't say anything about you ... there are 3 of us on the jury from Vandy and one is a physician (cardiologist) so you may know him as well. It has been an interesting case to say the least.’

I regret responding to his email at all, but regardless I felt that this was a fairly serious violation of his responsibilities as a juror and that I needed to make you and General Miller aware. I did not recognize the above-referenced cardiologist or any other jurors.

Adele Lewis, MD

State v. Smith, supra.  (Her reference to “General Miller” suggests that an Assistant Tennessee Attorney General was prosecuting the case.)

At some point, and in some way, the trial judge told the prosecution and defense attorneys what had happened.  State v. Smith, supra.  After the jury returned with its verdict and the verdict was announced in court, the judge excused the jurors and then had this exchange with Smith’s defense attorney:

MR. ENGLE: Your honor, I wondered if, before the jury departs the courthouse, if given the events of this morning it would be appropriate if [t]he Court inquired of this particular juror regarding any information that he might have acquired other than what has been made available to [t]he Court?

THE COURT: No, I'm satisfied with the communication that I have gotten from Dr. Lewis with regard to the matter. [She] filled us in fully on the matter and [she] told me that is exactly what was said and I am satisfied with it.

State v. Smith, supra.  The court notes that because the trial judge “did not inquire further into the nature of Mitchell's postings on Lewis's Facebook page,” the trial record did not “reflect whether his communications were public postings which others could see and comment on or whether they were private messages from one Facebook user to another.”   State v. Smith, supra. 

The judge “then sentenced Smith to life in prison.”  State v. Smith, supra.  He moved for a new trial, claiming “he was denied a fair trial because the court forbade him from questioning Mitchell about his exchange with Lewis and any other possible violations of the jury's instructions.” State v. Smith, supra.  The judge denied the motion “without comment”, and Smith appealed to the Tennessee Court of Appeals.  State v. Smith, supra.  That court upheld the judge’s decision not to question Mitchell, after which Smith appealed to the state Supreme Court. State v. Smith, supra. 

The Supreme Court began its analysis of Smith’s argument by noting that the “right to a trial by jury in both civil and criminal cases is a foundational right protected by both the federal and state constitutions.”  State v. Smith, supra.  It explained that the right to a

jury trial envisions that all contested factual issues will be decided by jurors who are unbiased and impartial. . . . In criminal cases, `[t]he jury is the property of neither a defendant nor the State.’ State v. Smith, 857 S.W.2d 1 (Tennessee Supreme Court 1993). Thus, the defendant and the State are entitled to a fair trial by an unbiased and impartial jury. . . . 

An unbiased and impartial jury is one that begins the trial with an impartial frame of mind, that is influenced only by the competent evidence admitted during the trial, and that bases its verdict on that evidence. Durham v. State, 182 Tenn. 577 (Tennessee Supreme Court 1945).

Trial courts must ensure the integrity of the jury system by holding jurors accountable to the highest standards of conduct. State v. Jackson, 173 S.W.3d 401 (Tennessee Supreme Court 2005). Accordingly, courts must discharge any juror who, for any reason, becomes disqualified to perform his or her duty. . . . Discharging this obligation not only protects the fairness of the trial itself, but also promotes and preserves the public's confidence in the fairness of the system. . . .

State v. Smith, supra. 

It also noted that “[l]ike judges, jurors must be -- and must be perceived to be --disinterested and impartial.” State v. Smith, supra.  The court then explained that

[w]hen a trial court learns that an extra-judicial communication between a juror and a third-party has occurred, the court must take steps to assure that the juror has not been exposed to extraneous information or has not been improperly influenced. In most circumstances, the appropriate first step is to conduct a hearing in open court in the presence of the defendant to place the facts in the record and to determine on the record whether cause exists to find that the juror should be disqualified. . . .

Because of the potentially prejudicial effect of a juror's receipt of extraneous information, the State bears the burden in criminal cases either to explain the conduct of the juror or the third party or to demonstrate how the conduct was harmless. Error is harmless when `it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ State v. Brown, 311 S.W.3d 422 (Tennessee Supreme Court 2010) (quoting Neder v. United States, 527 U.S. 1 (1999)).

State v. Smith, supra.    

The Supreme Court then took up the issue in this case, explaining that the first step

of the analysis is to determine whether the trial court received reliable and admissible evidence that an extra-judicial communication between a juror and a third party occurred. Here, Lewis's email to the trial court provides proof that such a communication between her and Mitchell did . . . occur. 

In addition, because the information in the email related to potentially prejudicial external influences, rather than the jury's deliberations or the juror's thought processes, the contents of the email were admissible under Tennessee Rule of Evidence 606(b). . . .

This evidence was sufficient to trigger the rebuttable presumption of prejudice to Mr. Smith, thereby requiring the State to explain the conduct or to demonstrate that it was harmless.

State v. Smith, supra. 

The Supreme Court then found that when the

trial court received competent and reliable evidence that an extra-judicial communication between a juror and a State's witness had taken place during the trial, it was required to do more than simply inform the parties about the email and then await the jury's verdict.

The trial court erred by failing to immediately conduct a hearing in open court to obtain all the relevant facts surrounding the extra-judicial communication between Lewis and Mitchell. This hearing may very well have necessitated calling Mitchell and Lewis to testify under oath about their relationship and the effect of the communication on Mitchell's ability to serve as a juror. 

Because the contents of the email focus only on events occurring before the jury received its instructions and retired to deliberate, the court may also have been required to call other members of the jury to determine whether Mitchell shared any extraneous information with other jurors.

State v. Smith, supra. 

The court also explained that because the trial judge did not

hold a hearing or to make findings of fact and conclusions of law, this record is inadequate for us to determine whether the extra-judicial communication between Lewis and Mitchell was not prejudicial. We do not know, for example, the full nature of their relationship and whether their relationship would have required Mitchell's disqualification

Because neither Mitchell nor any of his fellow jurors were questioned, the record contains no information regarding whether Mitchell passed along extraneous prejudicial information to the other members of the jury.

State v. Smith, supra. 

Since the “proper remedy” for a trial judge’s failure to hold such a hearing and make findings of fact and conclusions of law is “to remand the case for such a hearing”, the Supreme Court held that the

portion of the trial court's order that denies Smith's motion for a new trial based on Mitchell's improper extra-judicial communication with Lewis is vacated. The case is remanded to the trial court to conduct a hearing to determine whether Mitchell's Facebook communication with Lewis disqualified him from continuing to serve on Smith's jury.

Following this hearing, the trial court shall make findings of fact and conclusions of law regarding whether the challenged communication requires Mitchell's disqualification or whether Mitchell's misconduct was harmless beyond a reasonable doubt. If, for any reason, the trial court is unable to conduct a full and fair hearing with regard to Mitchell's improper extra-judicial communication with Lewis, then the trial court shall grant Smith a new trial.

State v. Smith, supra.  

If you would like to read more about the case, and see photos of Smith and Villanueva, check out the news story you can find here.

No comments: