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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE
Assigned on Briefs August 13, 2002 STATE OF TENNESSEE v. ANDRE MAYS and CORTEZ BENNETT
Appeal from the Criminal Court for Davidson County No. 99-D-2341 Steve Dozier, Judge

No. M2001-02151-CCA-R3-CD - Filed October 22, 2002

The Appellants, Andre Mays and Cortez Bennett, were convicted by a Davidson County Jury of first degree murder, attempted first degree murder, and two counts of especially aggravated robbery. Mays and Bennett were sentenced to life imprisonment plus fifty years. On appeal, Mays argues that the trial court erred in allowing a juror to remain on the panel after reading a prejudicial newspaper article during the trial. Bennett raises the following issues for review: (1) whether the trial court erred in not suppressing the photographic line-up; (2) whether the evidence was sufficient to support the verdicts; and (3) whether his sentence was proper. After a review of the record, the judgment of the trial court is affirmed. Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed. DAVID G. HAYES, J., delivered the opinion of the court, in which JOE G. RILEY and NORMA MCGEE OGLE , JJ., joined. Monte D. Watkins, Nashville, Tennessee, for the Appellant, Andre Mays; Cynthia F. Burnes, Nashville, Tennessee, for the Appellant, Cortez Bennett. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Peter M. Coughlan, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Jon Seaborg, Assistant District Attorney General, for the Appellee, State of Tennessee. OPINION Factual Background On June 29, 1999, the Appellants, Andre Mays and Cortez Bennett, were together with Eric Booth and Tywaun Morrow drinking. Earlier that day, they had "snorted cocaine and smoked marijuana laced with cocaine." During the evening, Mays discussed with the others the robbery of Tonya and Wesley Tyler Sr. at their residence in Nashville. Booth drove to the area and parked

several houses away from the Tylers' residence. Morrow and the Appellants exited the vehicle and went towards the house. Bennett was carrying a "tech nine," a large handgun, and Mays had a small caliber revolver. Morrow returned to the car shortly thereafter. Around 11:00 p.m., Wesley Tyler Sr. heard his dog barking. He went downstairs to quiet the dog; while downstairs, Mr. Tyler heard his wife call his name. Mr. Tyler then proceeded upstairs and, as he came up the steps, he "saw Bennett there with gun on [his two] children there on the floor." Another child was asleep in a bedroom. Hearing Mr. Tyler come up the stairs, Bennett, who was wearing a ski-mask, pointed the gun at him. Mr. Tyler turned and ran back downstairs but stopped when he heard Mays call his name. Mr. Tyler recognized Mays voice, having previously met him several times. Mays pointed a gun at Mr. Tyler, told him to "shut up," and forced him upstairs. Mays took money from the Tylers' dresser and then asked, "[W]here's the safe?" Mrs. Tyler responded that the safe was downstairs. Mr. Tyler offered to go get it, but Mays grabbed Mrs. Tyler and forced her downstairs. He stated to Mr. Tyler that he "was going to take care of [him] later." Bennett stayed in the living room with the children and Mr. Tyler. After several minutes had passed, Mays and Mrs. Tyler returned upstairs with the safe. Then, Mays and Mrs. Tyler went to her bedroom to retrieve the key. Upon their return to the living room, Mr. Tyler said, "you've got everything, you know, that we can give you. I mean, man, just take it and go. Mays then told Bennett to "hold on [before leaving the residence], . . . I'm going to take care of a little business first." Mays asked for Bennett's gun, and Bennett refused. Mays ordered Mr. and Mrs. Tyler to stand up and go into the bathroom. Mr. Tyler sat in the tub, and Mrs. Tyler sat on the toilet. Mays followed the couple into the bathroom, and Bennett stood outside the bathroom doorway. Mr. and Mrs. Tyler began to pray. Mays proceeded to shoot Mr. Tyler three times in the head. Mr. Tyler "laid over as if [he] was dead, but [he] wasn't dead." Mays then turned the gun on Mrs. Tyler and shot her twice in the head. The Appellants ran from the residence, carrying a small grey safe and guns. Mr. Tyler, hearing his children "running around," got out of the tub and checked on his wife, who was not moving. He then crawled into the kitchen and phoned 911, but he was unable to speak because his vocal cords and jawbone were damaged. Wesley Tyler Jr., then five years old, spoke with the 911 officer and gave her the pertinent information. Both Mr. and Mrs. Tyler were transported to the hospital for treatment. Mrs. Tyler died as a result of her injuries; however, Mr. Tyler survived. During the ambulance ride to the hospital, Mr. Tyler wrote on a bag, "Dre from north Sixth shot me."1 After leaving the residence, the Appellants and Booth and Morrow drove to a nearby Nashville residence and divided the money. The Appellants and Booth returned to the car and, in a nearby alley, threw out the revolver, the safe, some gloves, and a dark shirt. Subsequently, Wesley

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At trial, testimony established that Mays, whose first name is Andre, is commonly referred to as Dre.

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Tyler Sr. and Jr. identified Mays from a photo array, but only Wesley Tyler Sr. was able to identify Bennett from a photo array. Rings, belonging to Tonya Tyler, were discovered in Mays' pocket. All four men were arrested and, on October 19, 1999, were indicted for Count I, first degree murder of Tonya Tyler; Count II, felony murder of Tonya Tyler; Count III, especially aggravated robbery of Tonya Tyler; Count IV, attempted first degree murder of Wesley Tyler Sr.; and Count V, especially aggravated robbery of Wesley Tyler Sr. After a trial by jury, Bennett and Mays were found guilty of all charges. Count II was merged with Count I, and the Appellants received a total sentence of life imprisonment plus fifty years. This appeal followed. ANALYSIS I. Removal of Juror The Appellant Mays argues that "the Trial Court made a serious error in allowing a juror to remain on the jury after she violated his instruction not to read any newspaper articles about the trial." When there is extraneous prejudicial information or any outside influence is brought to bear on a juror, the validity of the verdict is questionable. State v. Parchman, 973 S.W.2d 607, 612 (Tenn. Crim. App. 1997). Rule 606(b) of the Tennessee Rules of Evidence prohibits a juror from giving testimony on "any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon any juror's mind or emotion as influencing" his or her vote. Tenn. R. Evid. 606(b); see also State v. Blackwell, 664 S.W.2d 686, 689 (Tenn. 1984). However, the rule allows a juror to "testify on the question of whether any extraneous prejudicial information was improperly brought to the jury's attention [or] whether any outside influence was improperly brought to bear upon any juror. . . ." Tenn. R. Evid. 606(b). If it is shown that one or more jurors has been exposed to extraneous prejudicial information or improper influence, there arises a rebuttable presumption of prejudice, and the burden then shifts to the prosecution to explain the conduct or to demonstrate the harmlessness of it. Parchman, 973 S.W.2d at 612; State v. Young, 866 S.W.2d 194, 196 (Tenn. Crim. App. 1992). In order to shift the burden to the prosecution to demonstrate the harmlessness of the communication with the jury, the threshold question is whether the statement communicated to the jury was prejudicial to the Appellant. Parchman, 973 S.W.2d at 612. At the motion for new trial hearing, the trial court found that: I mean, there was a juror, that the Court became aware of, had read an article in the

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