THE COURT: All right, let the record reflect that this is an inquiry of the jury panel following (3562) the receipt of their findings and verdicts in this case, and it is made at the specific request of the attorneys involved.
I'm going to ask you this. At some point about two weeks ago, Ms. Dacus, you mentioned to the clerk that you had received a harassing type phone call and wanted to report that.
MS. DACUS: Right. I didn't know who to report it to. I really didn't want to at first and then I was afraid it would be -- and I should report it.
THE COURT: She indicated that to the Court and in the presence of the bailiff, the sheriff, two or three deputies and Ms. Fleetwood I asked you would that in any way affect your ability to be fair-minded and to deliberate on this case and did you have any fears about continuing. Is that what I asked you?
MS. DACUS: None at all.
THE COURT: You indicated to me the call would have been two or three days ago and that you hadn't had any others? This occurred about two weeks ago?
MS. DACUS: It was on a Wednesday. I don't remember the date.
THE COURT: You indicated to me after I inquired of you that there was no problem whatsoever and you had no fear. Is that correct? (3563)
MS. DACUS: I felt like it was just a prank.
THE COURT: You told me you felt obligated to report it to the Court. Is that correct?
MS. DACUS: I felt like I should.
THE COURT: As I recall it -- and I am going to ask each of you your recollection of it -- did I not then make a statement to everybody in the jury room that if anybody received any calls or harassment to report that to the Court or the bailiff?
JUROR: Or to you.
THE COURT: You all indicated at that time that you had not received such call or intimidation or it wouldn't bother you if you had, or words to that effect. Is that correct?
THE JURY: Correct.
THE COURT: The Court erred in not reporting that to the -- well, erred -- I'm not sure that's the correct word. I made a mistake in not making a record of it at that time, putting it in the record that you had said that to me and I had indicated to you if anybody tried to bother you in any way, I wanted to know about it.
Do any of you have any different recollection of that?
THE JURY: No. (3564)
THE COURT: Did that in anyway affect your deliberations in this case?
THE JURY: No.
THE COURT: Did it in any way come up in the course of and in the discussion of this case in your deliberations?
THE JURY: No, sir.
THE COURT: Did any other such contact, innuendo or threat, if you will, come up in your discussion of this case?
THE JURY: No, sir.
THE COURT: Did any other subject matter of this nature not coupled with the evidence of this case arise during your deliberation whatsoever?
THE JURY: No, sir.
THE COURT: I'm going to ask the clerk to call your names again and ask you to affirm that the questions I have just inquired of you are in fact your truthful answer.
THE CLERK: Johnny Throgmarton.
MR. THROGMARTON: The statements are true.
THE CLERK: Jennifer Dacus.
MS. DACUS: True.
THE CLERK: Joan Sprinkle.
MS. SPRINKLE: True. (3565)
THE CLERK: Barbara White.
MS. WHITE: True.
THE CLERK: Peggy Vanhoozer.
MS. VANHOOZER: True.
THE CLERK: William Billingsley.
MR. BILLINGSLEY: True.
THE CLERK: Kent Arnold.
MR. ARNOLD: I hate to say this, but what was the question again?
THE COURT: The question is whether or not the subject matter of threats or threatening phone calls to the jury in any way affected your deliberations or was even discussed in your deliberations.
MR. ARNOLD: They were never discussed and never brought up in the deliberations. That's the truth.
THE CLERK: Oma Dooley.
MS. DOOLEY: True.
THE CLERK: Sharon French.
MS. FRENCH: True.
THE CLERK: Vicki Stoll.
MS. STOLL: True.
THE CLERK: Peggy Roebuck.
MS. ROEBUCK: true.
THE CLERK: Howard McNatt.
MR. McNATT: They were never brought up during (3566) deliberations and never discussed.
THE COURT: All right, thank you very much for your service. You're free to go.
MR. WADLEY: Your Honor, may we --
MR. PRICE: -- Judge --
THE COURT: -- That's it. You're free to go.
(JURY LEAVING CHAMBERS AT THIS TIME)
THE COURT: All right, this is the last time that y'all are going to be permitted to make any record in this case.
The Court doesn't see any need for any further inquiry of the jury other than what has just taken place.
MR. WADLEY: Your Honor, this morning there was a hearing held in chambers between Mr. Davis, Mr. Fogleman and all defense counsel concerning rumors that Mr. Price and Mr. Davidson had heard concerning threatening phone calls being made to a particular juror, that being Jennifer Dacus, and a threat made to one of the jurors' children, Kent Arnold. The Court --
THE COURT: -- You've already got a record of that.
MR. WADLEY: I understand that. I'll move on. The Court conducted an in-camera hearing with that (3567) juror, Mr. Arnold. Mr. Arnold acknowledged that there had been an indirect threat made to his daughter and he acknowledged that it had been discussed among the jurors.
After the trial was conducted and the defendants sentenced, the jury was brought back in and the Court inquired of the jurors had that been discussed during deliberations.
We specifically had requested the Court to inquire from the jury -- and this request was made prior to the Court talking to the jury concerning this issue -- that the jurors be questioned as to whether or not there was a discussion concerning a threat made to Kent Arnold's child at any time while the jurors were in service, and that request that the jurors be questioned about any conversations concerning threats made to the child or children be inquired by the Court as to what those discussions were and when they occurred.
It has been indicated they did not occur during deliberation, but it has also been indicated they occurred sometime during the trial, and we requested the Court to allow the Court to inquire from those jurors if in fact it had been discussed, when it was discussed, the nature of the discussions, the length (3568) of the discussions and that request was denied by the Court and we are requesting that that be allowed to be done.
MR. PRICE: We join in that request.
MR. DAVIDSON: We further point out that the question that the Court did put to the jurors did not fit this situation because it asked for any discussion during deliberations, and the testimony this morning from Mr. Arnold was that it did not occur during deliberations but that it occurred nearly two weeks prior to that.
We had requested the Court to allow -- to ask the questions individually to each of those -- or collectively even -- and those questions were not asked, and the remedy would be a mistrial. We would again ask for a mistrial.
MR. FORD: We would likewise based on the fact that every juror acknowledged that the Court discussed with them threatening phone calls that were received by Jennifer Dacus, and what they should do if they received threatening phone calls.
That that fact was never made known by the Court to defense counsel and had it not been for this phone call received last night, it is fair to conclude that the Court would never have informed us of this. (3569)
The fact that the Court did not inform us of this communication with Ms. Dacus did not give us the opportunity to ask her to be excused and to seat an alternate.
It is grounds for a mistrial and further, your Honor, we'd ask for a mistrial on that basis.
Secondly, we'd ask for a mistrial on the basis of the fact that a threat was communicated that was not received directly by Kent Arnold but was received by someone else in his family, and apparently people in his family were talking to him in violation of the Court's admonishment, and he admitted that but the Court would not inquire further as to what was discussed with the remaining eleven.
We would again be requesting a mistrial.
THE COURT: The mistrial will be denied. The Court attempted to follow Rule 606 as best as possible.
I asked questions of the jurors -- both to Mr. Arnold individually where he denied that any such threat played any part in his personal decision in this case.
He further indicated that it occurred two weeks before and it was a about a ten second conversation and what he made reference to I'm quite certain was (3570) Ms. Dacus' statement that she had received a harassing type phone call.
MR. PRICE: That's not on the record, Judge.
THE COURT: That was on the record. We just made a record of it. It occurred approximately two weeks ago.
MR. FORD: That is two different threats.
MR. FOGLEMAN: The testimony in the record is that she received some sort of prank call and she reported it to the Court.
MR. WADLEY: The Dacus deal and the Arnold deal are two separate situations.
THE COURT: The point the Court wants to make is when the lady came to me saying, I want to report this to you, it didn't bother me, didn't affect me, and I wanted to tell somebody. She told me.
I then came to the jury door with ample witnesses -- if you want to take affidavits from them, fine -- and told the jury that if any of them received any harassing or threatening type phone calls, to report that to the Court, the sheriff or the bailiff. And I dismissed it at that time from my mind of having any consequence whatsoever.
I admit that the better thing for me to do was to run in there to make your proverbial record, and I (3571) should have done that, but I'm convinced that it had absolutely nothing whatsoever to do with the jury deliberations or discussions in this case, and they have all so indicated.
And that is the end of this issue. You can appeal it all day long. Your record is made.