State of Tennessee v. Tony Edward Bigoms - separate opinion, E2015-02475-CCA-R3-CD

Defendant Tony Edward Bigoms was convicted after a trial with a sequestered jury; post-trial he moved for a new trial alleging jury separation and evidentiary error.
During sequestration jurors were briefly allowed to go home unattended to pack personal items before returning to the hotel; the court later collected jurors’ cell phones and supervised their use at the hotel.
While sequestered, jurors made brief telephone calls to family members in small groups (3–5) in the presence of court officers; officers could hear jurors and some but not all of the other-party speech.
The trial court found jurors remained under officer control, concluded supervised calls did not violate sequestration, and denied the new-trial motion on that ground; the court did find the packing trips problematic in other findings.
The State introduced testimony (Agent Turbeville) about prior DNA testimony from an earlier proceeding the Defendant attended; State argued the Defendant’s knowledge of DNA recovery explained removal of head/hands and supported guilt.
The concurrence agrees a new trial is required but departs from the lead opinion: (1) it concludes the supervised telephone calls did not constitute impermissible jury separation, and (2) it analyzes the DNA-knowledge proof under Rules 401/402/403 (rather than Rule 404(b)), concluding admission was prejudicial.

Issue	State's Argument	Bigoms' Argument	Held
Whether jurors’ supervised phone calls in officers’ presence constituted an impermissible jury separation	Calls were supervised; officers monitored jurors; no outside communication occurred so no separation or prejudice	Calls allowed one-sided communication and risked outside influence; separation occurred	Concurrence: no separation (officers present, jurors under control, no evidence of outside info). Lead opinion: viewed as a separation (but concurrence disagrees).
Whether jurors’ unsupervised trips home to pack violated sequestration	Any separation was harmless; court’s daily admonitions and juror assurances eliminated prejudice	Trips home were unsupervised and created presumed prejudice requiring new trial	Courts agreed trips home to pack were impermissible separations; presumed prejudice warranted a new trial.
Admissibility of testimony that Defendant knew, from attending a prior proceeding, that DNA could be recovered from hands/mouth	Knowledge was relevant to identity/motive (proffered as non-404(b) proof of knowledge tying defendant to removal of body parts)	Admission invited impermissible inference defendant had been previously accused/tried; unfairly prejudicial and misleading	Concurrence: Rule 404(b) inapplicable; under Rules 401/402/403 admission was unfairly prejudicial and not harmless — error requiring a new trial. (Lead opinion also found admission erroneous and prejudicial.)

State v. Bondurant, 4 S.W.3d 662 (Tenn. 1999) (explains purpose of sequestration: protect jurors from outside influences so verdict rests only on trial evidence)
State v. McCary, 119 S.W.3d 226 (Tenn. Crim. App. 2003) (discusses permissible purposes and procedural safeguards for admission of other-crimes evidence under Rule 404(b))